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655. Commission returned by mail, how disposed of. If the commission and return be transmitted by mail, the clerk to whom it is addressed must open and file it in his office, where it must remain, unless the court otherwise direct.

A commission returned by mail addressed to the clerk cannot be read, unless an order were made for its return in that manner. Richardson v. Gere, 21

Wend. 156.

It is no objection that they were not deposited in the post-office immediately after they were taken. Halleran v. Field, 23 Wend. 38.

The commissioners need not indorse on the envelope a certificate that they deposited the return in the post-office. Brunskill v. James, 11 N. Y. 294; Hall v. Barton, 25 Barb. 274.

A deposition cannot be read until actually filed. Parker v. Holby, 20 Johns. 357; Oneida, etc. v. Lawrence, 4 Cow. 440.

§ 656. Commission and return to be opened for inspection, and copies to be furnished. 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, at the rate of five cents for every hundred words.

See Code Civ. Proc., § 961.

§ 657. Deposition to be read in evidence; what objec tions may be taken thereto. The deposition, taken under the commission, may be read in evidence by either party on the trial, 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.

Mere formal defects which are wholly immaterial may be disregarded. Rust v. Eckler, 41 N. Y. 488.

Where the statute has been substantially complied with, and the prisoner is not prejudiced, it is sufficient. Goodyear v. Vosburgh, 41 How. Pr. 421; Hall v. Barton, 25 Barb. 274; McCleary v. Edwards, 27 id. 239.

The absence of the return which the statute requires to be indorsed on the commission is not a ground for suppressing the deposition on motion. Creamer v. Jackson, 4 Abb. Pr. 413.

A commission issued without a seal under it cannot be read in evidence.

is a nullity, and the depositions taken
Ford v. Williams, 24 N. Y. 359.
Parker v. Holby, 20 Johns. 357; Oneida

Nor until filed in the clerk's office.
Mfg. Society. Lawrence, 4 Cow. 440.
The deposition may be read by either party. Weber v. Kingsland. 8 Bosw. 415.
The informal party may be excluded. Commercial Bunk v. Union Bank

11 N. Y. 203.

Objections taken must point out the error complained of. tional Society, etc., 20 N. Y. 32.

Dalton v. Na

When answers will be excluded. Lansing v. Cooly, 13 Abb. Pr. 272; Railway, etc., v. Warner, 1 Th. & C. 21; Fassin v. Hubbard, 55 N. Y. 465; Heineman v. Hurd, 2 Hun, 324; Meyer v. Levy, 54 How. Pr. 274.

An objection to the interrogatories cannot be made on the trial. Frances v. Ocean Ins. Co., 6 Cow. 404; 2 Wend. 64; Hall v. Barton, 25 Barb. 274.

If the witness refuse to answer a cross-interrogatory the whole deposition may be rejected. Smith v. Griffith, 3 Hill, 333.

An objection that some of the interrogatories are not fully answered must be made as soon as discovered, on a motion to suppress. Vilmar v. Schall, 35 N. Y. Super. 67; 61 N. Y. 688.

The inadmissibility of evidence is the proper ground for such a motion. Howard v. Orient M. Ins. Co., 9 Bosw. 645.

A deposition will not be suppressed because an answer to a cross-interrogatory is not full. Baker v. Spencer, 47 N. Y. 562.

An answer not responsive may be excluded on objection. Lansing v. Cooley, 13 Abb. Pr. 272.

An answer not responsive will be excluded. Railway Pass. Ass. Co. v. Warner, 1 Th. & C. 21, add.

Testimony otherwise competent not to be rejected. Fassin v. Hubbard, 55 N. Y. 465.

If the answer of a witness to a direct interrogatory be properly excluded, all cross-interrogatories must also be, if dependent thereon. Fleming v. Hollenback, 7 Barb. 271.

The deposition will be stricken out on the trial if evasive or untruthful, or if the witness has not fully and fairly answered the cross-interrogatories. Terry v. McNeil, 58 Barb. 241.

An objection to a question as leading must be made on settlement of the interrogatories, or it is waived. Hazlewood v. Heminway, 3 Th. & C. 787.

A party who has taken the testimony of & witness residing abroad, under a commission, may read the deposition, though the witness be in court; he is not bound to call the witness, but he may be called and examined by the other side. Phonix v. Baldwin, 14 Wend. 62.

The original commission must be used when the cause is tried in the county to which it is returned. In another county an authenticated copy may be used. Bishop v. Ferguson, 46 N. Y. 688.

The party who took the commission may read the answers to the crossinterrogatories, though the other party object. Marshal v. Watertown S. E. Co., 10 Hun, 463.

Where the question is leading, and the answer is the expression of the judgment of the witness upon the fact, it is not legal evidence and cannot be disregarded as harmless on motion for new trial. Meyer v. Levy, 54 How. Pr. 274.

The mere fact that the witness was permitted to peruse both sets of interrogatories, prior to his examination, not sufficient ground for the rejection of the evidence. Butler v. Flanders, 56 How. Pr. 312.

The court has discretionary power upon objections. Cope v. Sibley, 12 Barb. 521; Hazlewood v. Heminway, 3 Th. & C. 787.

Where there were two persons by the name of the commissioner selected, an objection that it was not executed by the proper person cannot be raised for the first time at the trial. Newton v. Porter, 69 N. Y. 133.

CHAPTER V.

INQUIRY INTO THE INSANITY OF THE DEFENDANT BEFORE OR DURING

THE TRIAL, OR AFTER CONVICTION.

SECTION 658. Appointment of commission; their proceedings.

659. If found insane, trial or judgment suspended, and defendant to be committed to state lunatic asylum, if his discharge be dangerous to the public peace or safety.

660. If defendant committed, bail exonerated or deposit of money

refunded.

661. Detention of defendant in asylum, and proceedings on his becoming sane.

662. Expenses incident to sending defendant to asylum, how paid.

§ 658. Appointment of commission; their proceedings. When a defendant pleads insanity, as prescribed in section three hundred and thirty-six, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his sanity at the time of the commission of the crime.

If a defendant in confinement, under indictment, appears to be, at any time before or after conviction, insane, the court in which the indictment is pending, unless the defendant is under sentence of death, may appoint a like commission to examine him and report to the court as to his sanity at the time of the examination.

The commission must summarily proceed to make their exam ination. Before commencing they must take the oath prescribed in the Code of Civil Procedure to be taken by referees. They must be attended by the district attorney of the county, and may call and examine witnesses and compel their attendance. The counsel of the defendant may take part in the proceedings. When the commissioners have concluded their examination they must forthwith report the facts to the court with their opinion thereon.

Commissioner's oath. Code Civ. Proc., § 1016.

See Penal Code, § 20; 2 Crim. Law Mag. 605, 612; People v. Haight, 18 Abb. N. C. 198; 3 N. Y. Cr. Rep. 61; People v. Rhinelander, 2 id. 338; People, rel., v. Walsh, 21 Abb. N. C. 299; People v. McElvaine. 125 N. Y. 596.

§ 659. If found insane, trial or judgment suspended, and defendant to be committed to state lunatic asylum, if his discharge be dangerous to the public peace or safety. If the commission find the defendant insane, the trial of judgment must be suspended until he becomes sane; and the court, if it deem his discharge dangerous to the public peace or safety, must order that he be, in the meantime, committed by the sheriff to a state lunatic asylum; and that upon his becoming sane, he be re-delivered by the superintendent of the asylum to the sheriff.

$660. If defendant committed, bail exonerated or deposit of money refunded. The commitment of the defendant, as mentioned in the last section, exonerates his bail, or entitles a person authorized to receive the property of the defendant, to a return of any money he may have deposited instead of bail.

661. Detention of defendant in asylum, and proceedings on his becoming sane. If the defendant be received into the asylum, he must be detained there until he becomes sane. When he becomes sane, the superintendent must give a written notice of that fact to a judge of the supreme court of the district in which the asylum is situated. The judge must require the sheriff without delay to bring the defendant from the asylum and place him in the proper custody until he be brought to trial, judg ment, or execution as the case may be, or be legally discharged.

§ 662. Expenses incident to sending defendant to asylum, how paid. The expenses of sending the defendant to the asylum, of keeping him there, and of bringing him back, are, in the first instance, chargeable to the county from which he was sent; but the county may recover them from the estate of the defendant, if he have any, or from a relative, town, city, or county, bound to provide for and maintain him elsewhere.

CHAPTER VI.

COMPROMISING CERTAIN CRIMES, BY LEAVE OF THE COURT.

SECTION 663. Certain crimes, for which the party injured has a civil action, may be compromised.

664. Compromise to be by permission of the court; order thereon.

665. Order, a bar to another prosecution.

666. No public offense to be compromised, except as provided in this

chapter.

§ 663. Certain crimes for which the party injured has a civil action, may be compromised. When a defendant is brought before a magistrate or is held to answer, on a charge of a misdemeanor, for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised, as provided in the next section, except when it was committed,

1. By or upon an officer of justice, while in the execution of the duties of his office;

2. Riotously; or

3. With an intent to commit a felony.

§ 664. Compromise to be by permission of the court; order thereon.- If a party injured appear before the magistrate, or before the court to which the deposition and statements are required, by section two hundred and twenty-one, to be returned at any time before trial or commitment by the magistrate, or trial on indictment for the crime, and acknowledge in writing that he has received satisfaction for the injury, the magistrate or court may, in his or its discretion, on payment of the costs and expenses incurred, if such magistrate or court shall see fit so to direct, order all proceedings to be stayed upon the prosecution and the defendant be discharged therefrom. But in that case, the reason for the order must be set forth therein and entered upon the minutes.

§ 665. Order a bar to another prosecution. The order authorized by the last section is a bar to another prosecution for the same offense.

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