clerk of the court in which the action is pending, designating his name and the place where his office is kept.

1357. The commissioner, unless otherwise specially directed, may execute the commission as follows:

1. He must publicly administer an oath to the witness that his answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth.

2. He must cause the examination of the witness to be reduced to writing, and subscribed by him.

3. He must write the answers of the witness as near as possible in the language in which he gives them, and read to him each answer as it is taken down, and correct or add to it until it conforms to what he declares is the truth.

4. If the witness decline answering a question, tha: fact, with the reason assigned by him for declining, must be stated.

5. If any papers or documents are produced before him and proved by the witness, they, or copies of them, must be annexed to the deposition subscribed by the witness and certified by the commissioner.

6. The commissioner must subscribe his name to each sheet of the deposition, and annex the deposition, with the papers and documents proved by the witness, or copies thereof, to the commission, and must close it up under seal, and address it as directed by the indorsement thereon.

7. If there be a direction on the commission to return it by mail, the commissioner must immediately deposi it in the nearest post-office. If any other direction be made by the written consent of the parties, or by the court or judge, on the commission, as to its return, the commissioner must comply with the direction.

A copy of this section must be annexed to the commission. [Approved March 30th, in effect July 1st, 1874]

1358. If the commission and return be delivered by the commissioner to an agent, he must deliver the same

to the clerk to whom it is directed, or to the judge of the court in which the action is pending, by whom it may be received and opened, upon the agent making affidavit that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it. [In effect April 9th, 1880.]

1359. If the agent is dead, or from sickness or other casualty unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the clerk or judge from any other person, upon bis making an affidavit that he received it from the agent. that the agent is dead, or from sickness or other casualty unable to deliver it; that it has not been opened or altered since the person making the affidavit received it; and that he believes it has not been opened or altered since it came from the hands of the commissioner.

1360. The clerk or judge receiving and opening the commission and return must immediately file it, with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment is pending. If the commission and return is transmitted by mail, the clerk to whom it is addressed must receive it from the post-office, and open and file it in his office, where it must remain, unless otherwise directed by the court or judge.

1361. The commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same or of any part thereof, on payment of his fees.

1362. The depositions taken under the commission may be read in evidence by either party on the trial, upon it being shown that the witness is unable to attend from any cause whatever; and the same objections may be taken to a question in the interrogatories or to an answer in the deposition, as if the witness had been examined orally in court.

The court may exercise discretion in admitting or rejecting a deposition taken out of the State-50 Me. 409; see 38 Cal. 183; ante, § 1345.

CHAPTER VI.

INQUIRY INTO THE INSANITY OF THE DEFENDANT BEFORE TRIAL OR AFTER CONVICTION.

§ 1367. Insane person cannot be tried, or punished.

§ 1368.

§ 1369. § 1370.

§ 1371.

Doubts as to sanity of the defendant, how determined. Stay of proceedings on.

Trial of the question of insanity. Charge of the court. Verdict of the jury as to sanity, and proceedings thereon. If defendant is committed, it exonerates his bail, etc. § 1372. Defendant detained in asylum until he becomes sane. § 1373. Expense of sending, etc., defendant to asylum.

1367. A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insans Insanity.-A person cannot be tried, adjudged, or punished wh insane, for a public offense-31 Cal. 579. The criminal actor must be ♫ sane mind, as an act does not make a man guilty unless his minds guilty-see Co. Litt. 247 b; 1 Russ. Cr. 9th ed. 6; 1 Hale P. C. Bish. C. L. 6th ed. § 375; and an insane person cannot have any intert -38 Ga. 507. Sanity is an essential ingredient in crime; but weakness of mind is not insanity-8 Cal. 370; 24 Ind. 231; 7 Ga. 3; see 4 Ill. 358; 58 Ind. 538. Insanity is a disease which impairs or totally stroys either the understanding, or the will, or both-31 Ind. 492; a cuz trolling disease which cannot be resisted-1 Duval, 224; 54 Barb. 2 Ga. 329; 31 Ind. 492; id. 485; 7 Met. 500; 59 Pa. St. 328; 65 id. 347; & Met. (Ky.)227; sufficient to create an overwhelming impulse to do act-8 Bush, 365; id. 464; 40 Coun. 136; 47 Ga. 553; 31 II. 385; id. 49, 5 Iowa, 67; 2 Parker Cr. R. 43; 4 Pa. St. 267; see 7 Law Reporter, SA person may be insane in a degree not relieving from responsibilityfs crime-39 Cal. 690; 1 Cliff. 98; 39 Conn. 591; 13 Abb. Pr. N. S. 27. É Sel. Cas. 126; 1 Curt. 1; 31 Ill. 285; 10 Minn. 223; 57 Me. 574; 50 NE 369; 4 Pa. St. 264; 1 Strob. 479. Moral insanity coexisting with m insanity has no foundation in law, and will not furnish an excuse fro punishment for crime-47 Cal. 134; 24 id. 230; 1 Cliff. 98; 39 Conn. Denio, 9; 25 Ga. 507; 45 id. 190; 31 id. 424; 11 Gray, 303; 8 Abb. Pr. X 5 57; 5 Har. (Del.) 512; 8 Jones (N. C.) 463: 6 McLean, 121; 57 Me. 54 N. Y. 193; 52 id. 467; 2 Ohio St. 54; 48 Mass. 500; Wright, 8; 2 Cas. 132; 1 Zab. 196. Insanity produced by intoxication does not u stroy responsibility, if the accused when sane voluntarily made self drunk-43 Cal. 352; 36 id. 531. See Desty's Crim. Law, §3 23-20, ser ante, § 1016.

Test of insanity.-The true inquiry is, whether the defendant wat capable of having and did have a criminal intent, and the capacity: distinguish between right and wrong, as to the act charged as a cria -47 Cal. 134; 24 id. 230; 17 Ala. 434; 1 Curt. 1; 3 Heisk. 348; 31 12 25. 30 Miss. 600; 21 Mo. 464; 32 N. Y. 719; 52 id. 467; 10 Ohio St. 5; 3. 146; 76 Pa. St. 414; 7 Tex. Ct. App. 163; id. 607; see 34 Iowa, 11; and is sufficient if shown to have existed in reference to the particular að

-47 Cal. 134; 24 id. 230; 40 Conn. 136; 1 Curt. 8; 39 Conn. 591; 4 Denio, 29; 3 Ga. 310; 31 id. 424; 42 id. 9; 45 id. 58; id. 190; id. 280; 4 Greene, Iowa, 500; 6 McLean, 121; 7 Met. 500; 57 Me. 574; 11 Gray, 303; 5 N. H. 369; 2 Barb. 566; 52 N. Y. 467; 4 Pa. St. 264; 78 id. 122; 2 Parker Cr. R. 43; 1 Baxt. 178; 1 Zab. 196; Wright, 392; 2 Va. Cas. 132. See Desty's Crim. Law, § 23 b.

1368. When an action is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arise as to the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity. [In effect April 9th, 1880.]

Proof of insanity.-As often as any doubt of the sanity of the defendant arises the same proceedings may be had-31 Cal. 579; 15 id. 329. Counsel cannot waive an inquiry as to the question of the sanity of defendant, nor can he compel the court to enter upon the inquiry where no ground for doubt arises-42 Cal. 21. No plea of present insanity is required if during the proceedings a doubt arises. It is then the duty of the court of its own motion to suspend further prosecution until the question of sanity has been determined-42 Cal. 21. The burden of proof is on the prisoner-49 Cal. 488; 47 id. 136; 20 id. 519.

Insanity must be proved as a substantive fact by the party alleging It-20 Cal. 518; 4 Cranch C. C. 514; 1 Curt. 1; 7 Gray, 583; 1 Zab. 202; 8 Jones, (N. C.) 463; 1 Strob. 479; 5 Ala. 241; 20 Gratt. 860; 10 Ohio St. 598; and must be clearly established by satisfactory evidence-47 Cal. 136. The jury are to be governed by the preponderance of evidence, and are not to require it to be made out beyond a reasonable doubt-24 Cal. 230; 49 id. 14; id. 488; 6 id. 410; 5 id. 129; 20 id. 519; 7 Gray, 583; 7 Met. 500; 10 Ohio St. 598; 57 Me. 574; 11 Gray, 303; 16 N. Y. 58; 35 id. 125; 32 id. 147; 77 Pa. St. 205; 76id. 414; 26 Ark. 334; 32 Iowa, 49; 6 Jones, (N. C.) 366; 8 id. 463; 10 Ohio St. 598; 31 id. 111; see 1 Brewst. 356; 83 Pa. St. 131; 84 id. 200.

It is not improper to caution the jury to be careful that no pretended case of insanity should be allowed to shield the defendant from the ordinary consequences of his act-45 Cal. 652.

1369. The trial of the question of insanity must proceed in the following order:

1. The counsel for the defendant must open the case, and offer evidence in support of the allegation of insanity. 2. The counsel for the people may then open their case, and offer evidence in support thereof.

3. The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in fur

therance of justice, permit them to offer evidence up. their original cause.

4. When the evidence is concluded, unless the case 3 submitted to the jury on either or both sides without argument, the counsel for the people must commence, and the defendant or his counsel may conclude the argument to the jury.

5. If the indictment be for an offense punishable with death, two counsel on each side may argue the cause :: the jury, in which case they must do so alternately. In other cases, the argument may be restricted to one cour sel on each side.

6. The court must then charge the jury, stating to them all matters of law necessary for their information in giving their verdict.

1370. If the jury find the defendant sane, the tra must proceed, or judgment be pronounced, as the case may be. If the jury find the defendant insane, the trial or judgment must be suspended until he becomes sabė. and the court must order that he be in the meantime committed by the sheriff to the State insane asylum, and that upon his becoming sane he be redelivered to the sheriff. [In effect April 9th, 1880.]

1371. The commitment of the defendant, as men tioned in the last section, exonerates his bail, or entitles a person, authorized to receive the property of the defend ant, to a return of any money he may have deposited instead of bail.

1372. If the defendant is received into the asylum he must be detained there until he becomes sane. When he becomes sane, the superintendent must give noticed that fact to the sheriff and district attorney of the county The sheriff must thereupon, without delay, bring the defendant from the asylum, and place him in propet custody until he is brought to trial or judgment, as the case may be, or is legally discharged.