SUBCHAPTER III-WITNESSES; SUBPOENAS Sec. 4231. Subpoenas generally. 4232. Issuance of subpoena. 4233. Service of subpoena. 4234. Tendering fees and mileage. 4235. Place of service; subpoena for taking deposition. 4236. Civil liability for disobedience. 4237. Summoning witnesses for trial in magistrate's court. 4238. Prisoner as witness. SUBCHAPTER IV-DEPOSITIONS Article A-Depositions Generally 4271. Depositions on motion of defendant. Article B-Examination of Witness Conditionally 4291. Right to have witnesses examined conditionally. 4292. Grounds for examination. 4293. Form of application for order. 4294. Application for order to district court or magistrate. 4295. Order for examination. 4296. Examination not to take place when grounds nonexistent. 4297. Presence of defendant at examination. 4298. Subpoena for witness. 4299. Testimony; reduction to writing; authentication. 4300. Transmittal of deposition to court. 4301. Use of deposition in evidence. SUBCHAPTER V-SECURING THE ATTENDANCE OF WITNESSES 4331. Definitions. 4332. Summoning witness in Canal Zone to testify in another State. 4335. Uniformity of interpretation. 4336. Short title. Subchapter I-Generally § 4151. Order of proceedings on trial Unless otherwise directed by the judge, the trial in a criminal action in the district court shall be conducted in the following order: (1) the United States attorney or other counsel for the Government shall open the cause and offer the evidence in support of the charge; (2) the defendant or his counsel may then open the defense and offer his evidence in support thereof; (3) the parties may then respectively offer rebutting testimony only, unless the court for good reason in furtherance of justice permits them to offer evidence upon their original case; and (4) when the evidence is concluded unless the case is submitted on either side or on both sides without argument, the United States attorney or other counsel for the Government and counsel for the defendant may argue the case; the United States attorney or other counsel for the Government opening the argument and having the right to close. § 4152. Number of counsel who may argue cause If the information is for an offense punishable with death two counsel on each side may argue the cause. If it is for any other offense the district court may in its discretion restrict the argument to one counsel on each side. § 4153. View by jury If, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the marshal, to the place, which shall be shown to them by a person appointed by the court for that purpose. The marshal shall be sworn to suffer no person to speak or communicate with the jury, nor to do so himself, on any subject connected with the trial, and to return them into court without unnecessary delay or at a specified time. § 4154. Forms of verdict The verdict upon a plea of not guilty is either "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the information. Upon a defense of a former conviction or acquittal of the same offense or a defense of once in jeopardy, the verdict is either "for the Government" or "for the defendant." When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the verdict shall be "not guilty by reason of insanity." 84155. Finding degree of crime (a) When a crime is distinguished into degrees, a verdict of conviction shall find the degree of the crime of which the defendant is guilty. (b) When a crime is distinguished into degrees, upon a plea of guilty, or upon a trial without a jury, the district court or magistrate's court shall determine the degree before passing sentence. § 4156. Conviction of included offense or attempt The jury, the district court in a case tried without a jury, or the magistrate's court, may find the defendant guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or of an offense necessarily included therein if the attempt is an offense. § 4157. Several defendants; conviction or acquittal of some Upon a prosecution against several defendants any one or more may be convicted or acquitted. § 4158. Several defendants; several offenses; verdict (a) Rule 31(b) of the Federal Rules of Criminal Procedure applies to verdicts if there are two or more defendants. (b) If two or more offenses are charged in separate counts in the same information, or in two or more informations tried together, the jury at any time during its deliberations may return a verdict or verdicts with respect to a count or counts as to which it has agreed; if the jury cannot agree with respect to all, the count or counts as to which it does not agree may be tried again. § 4159. Reconsideration of verdict When there is a verdict of conviction, in which it appears to the court that the jury has mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider its verdict. After the reconsideration, if the jury returns the same verdict, it shall be entered. When there is a verdict of acquittal, the court may not require the jury to reconsider it. § 4160. Judgment upon informal verdict If the jury persists in finding an informal verdict, from which, however, it can be clearly understood that the jury's intention is to find in favor of the defendant upon the issue, the verdict shall be entered in the terms in which it is found, and the court shall give judgment of acquittal. A judgment of conviction may not be given unless the jury finds against the defendant upon the issue. 4161. Recording verdict When the verdict given is such as the court may receive, the clerk shall immediately record it in full upon the minutes, read it to the jury, and inquire of the jury whether it is its verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall be discharged from the case. Subchapter II-Evidence Generally § 4191. Presumption of innocence; reasonable doubt A defendant in a criminal action is presumed to be innocent until the contrary is proved and in case of a reasonable doubt as to his guilt is entitled to an acquittal. § 4192. Reasonable doubt as to degree of crime If it appears that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he may be convicted of the lowest of the degrees only. § 4193. Proof of treason A person may not be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court. § 4194. Discharge of defendant to be witness (a) If two or more persons are included in the same charge, the court may, at any time before the defendants have adduced testimony in defense, on the application of the United States attorney, direct a defendant to be discharged, that he may be a witness for the Government. (b) When two or more persons are included in the same charge, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it shall order him to be discharged before the evidence for the defense is closed, that he may be a witness for his codefendant. (c) The order prescribed by subsections (a) and (b) of this section is an acquittal of the defendant discharged and a bar to another prosecution for the same offense. Subchapter III-Witnesses; Subpoenas § 4231. Subpoenas generally Except as otherwise provided by this subchapter, a subpoena in a criminal action in the district court or a magistrate's court is governed by Rule 17 of the Federal Rules of Criminal Procedure. § 4232. Issuance of subpoena (a) A subpoena may be signed and issued by: (1) a magistrate before whom a complaint is made, on behalf of either the Government or the defendant; (2) the judge of the district court; (3) the clerk of the district court upon application either of the Government or the defendant; or (4) the United States attorney. (b) A subpoena issued by a magistrate or the United States attorney need not be under the seal of a Court. (c) A magistrate or the clerk of the district court shall, at any time and without charge, issue subpoenas for witnesses for the defendant upon his request. 84233. Service of subpoena (a) A subpoena shall be served as provided by Rule 17(d) of the Federal Rules of Criminal Procedure. (b) A peace officer shall serve a subpoena delivered to him for service, either on the part of the Government or of the defendant, and shall, without delay, make a written return of the service, subscribed by him, stating the time and place of service. § 4234. Tendering fees and mileage (a) Notwithstanding Rule 17 (d) of the Federal Rules of Criminal Procedure, fees and mileage need not be tendered to the witness upon service of a subpoena issued on behalf of the Government of the Canal Zone. (b) When a person attends before a court or magistrate as a witness in a criminal action, upon a subpoena or in pursuance of an undertaking to testify on behalf of the prosecution, and it appears that he has come from a place more than three miles distant from the place where he is to appear, or that he is poor and unable to pay the expenses of his attendance, the court or magistrate, in its or his discretion, by an order upon the minutes if the attendance of the witness is upon a trial and by a written order in any other case, may direct the payment to the witness of a reasonable sum to pay his expenses, which sum shall be charged against his per diem. § 4235. Place of service; subpoena for taking deposition (a) In criminal actions originally triable in the district court, a subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the United States. (b) In criminal actions triable in a magistrate's court, and in trials in the district court on appeal from a magistrate's court, a subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the Canal Zone. (c) Notwithstanding Rule 17 (f) (2) of the Federal Rules of Criminal Procedure, a subpoena for a deposition to be taken in the Canal Zone may be served, and attendance of the witness may be required, anywhere within the Canal Zone. § 4236. Civil liability for disobedience A witness disobeying a subpoena in a criminal action issued on the part of the defendant, unless he shows good cause for his nonattendance, is liable to the defendant in the sum of $100, which may be recovered in a civil action. § 4237. Summoning witnesses for trial in magistrate's court (a) When a person arrested charged with an offense cognizable by a magistrate is placed on trial, he shall give the names of his witnesses, if he has any, and their places of abode; and the magistrate shall forthwith issue subpoenas for them to testify in the cause. The subpoenas shall state the day, hour and place of trial. (b) Rule 17(b) of the Federal Rules of Criminal Procedure applies to the issuance of subpoenas by a magistrate's court at the request of an indigent defendant, and the payment of costs and fees therefor. (c) When a day is set for trial by the magistrate, the witnesses for the prosecution shall immediately be summoned. Subpoenas being issued and served upon them, they shall appear before the magistrate where the trial is to take place. § 4238. Prisoner as witness (a) When the testimony of a material witness for the Government or the defendant is required before a court in a criminal action and the witness is a prisoner in the penitentiary, or in jail, an order for his temporary removal from the penitentiary or jail, and for his production before the court, may be made by the court in which the action is pending, or by the judge thereof. The order may only be made upon the affidavit of the United States attorney or other person on behalf of the Government, or of the defendant or his counsel, showing that the testimony is material and necessary. (b) The order shall be directed to the warden of the penitentiary or the keeper of the jail in which the prisoner is confined and the warden or keeper or their designees shall bring the prisoner before the proper court and safely keep him, and when he is no longer required as a witness, return him to the penitentiary or jail. The expense of executing the order shall be paid from the funds of the Canal Zone Government. (c) When the testimony of a material witness who is a prisoner is required in an investigation being conducted by the United States attorney, an order may be made pursuant to this section by the district judge or, in his absence, by a magistrate. Subchapter IV-Depositions Article A-Depositions Generally § 4271. Depositions on motion of defendant (a) Except as provided by this section, Rule 15 of the Federal Rules of Criminal Procedure, relating to depositions, applies to criminal actions in the district court and the magistrates' courts. (b) An order to take a deposition may be made at any time after the filing of a complaint. Prior to the filing of the information in an action triable in the district court, or prior to the filing of the complaint on appeal in the district court in an action triable in a magistrate's court, the order shall be made by a magistrate. After the filing of the information or complaint in the district court, the order shall be made by the district court. (c) In addition to the provisions of Rule 15 (e) of the Federal Rules of Criminal Procedure, a deposition taken under Rule 15 may be used in the Canal Zone at a trial or upon any hearing if it appears that the witness is out of the Canal Zone, unless it appears that the absence of the witness was procured by the party offering the deposition. Article B-Examination of Witness Conditionally § 4291. Right to have witnesses examined conditionally At any time after the preliminary examination in an action triable in the district court, or after the defendant's arrest in an action triable in a magistrate's court, either or both the defendant and the Government may have witnesses examined conditionally in his or its behalf, as prescribed by sections 4291-4301 of this title. § 4292. Grounds for examination When a material witness for the defendant, or for the Government, is about to leave the Canal Zone, or is so sick or infirm as to afford reasonable grounds for apprehension that he will be unable to attend the trial, the defendant or the Government may apply for an order that the witness be examined conditionally. § 4293. Form of application for order The application for conditional examination shall be made upon affidavit stating: (1) the nature of the offense charged; (2) the state of the proceedings in the action; |