settled, and such commission shall be issued, executed and returned in the manner prescribed by law in respect to commissions in civil cases, and the depositions taken thereon shall be read in the same cases and with the like effect as in civil suits.1

Witnesses cannot be examined de bene esse at the instance of the public prosecutor after indictment found, though they may be at the instance of the defendant, and after issue joined upon an indictment, the defendant may examine witnesses residing out of the State upon commission, and the public prosecutor is entitled to join in the commission and name witnesses on the part of the people; but there is no authority at common law for taking depositions in criminal cases out of court without the consent of the defendant. The general rule in criminal cases is, that witnesses must appear in court and be confronted by the accused party, and the exception to this rule recognized at common law is that of dying declarations in prosecutions for homicide.2

74. OF THE EXAMINATION OF WITNESSES CONDITIONALLY BY THE

DEFENDANT.

After an indictment shall be found against any defendant he may have witnesses examined in his behalf conditionally, on the order of a judge of the court in which the indictment is pending in the same cases, upon the like notice to the district attorney, and with the like effect in all respects as in civil suits.3

A deposition taken conditionally in the case of a charge for a criminal offence and before indictment, which is entitled in a court of sessions where there is no suit or proceeding pending, and in a suit which is not yet commenced, and which throughout refers to the accused not by their individual names but as defendants, cannot be read on the trial of an indictment afterwards preferred on that charge, because of the rule that on such a deposition the witness could not be convicted of perjury in false swearing.1

§ 75. OF THE REMOVAL OF INDICTMENTS BEFORE TRIAL FROM THE COURT OF SESSIONS TO THE COURT OF OYER AND TERMINER.

The Revised Statutes provide for the removal of indictments

12 R. S., 731, § 78.

3

2. R. S., 731, § 79.

Peo. v. Restell, 3 Hill, 289.

Peo. v. Chrystal, 8 Barb., 545; vide § 73, ante.

from the courts of sessions to the courts of oyer and terminer of the same county; thus every person, against whom an indictment shall be pending in the court of sessions, may apply to any justice of the Supreme Court for an order to remove such indictment to the court of oyer and terminer of the county in which the same was found.1

The removal of indictments before trial from the court of sessions to the court of oyer and terminer, as above stated, is now by verified application and order thereon of a Supreme Court justice. The removal of indictments by certiorari from a court of sessions, before trial thereon, to the Supreme Court or to a court of oyer and terminer has been abolished.2

Where an indictment has been found at the sessions for an offence triable in that court, and the cause is subsequently removed into the oyer and terminer by an order of a circuit judge, the oyer and terminer has power to order the indictment to be sent back to the sessions for trial, and this without notice to the accused.3

No other person than the county judge of the county courts of the county of Erie, being of the degree of counsellor at law in the Supreme Court, or the justices of the supreme court or superior court, have power to allow any writ of certiorari, or make any order for the removal of any criminal cause from the court of sessions of said courts, and any one of such officers have such power. The recorder of the city of Buffalo and either of the Supreme Court or superior court judges, and no other persons, have the like power as to the recorder's court in said city. No such writ of certiorari shall be allowed or order made without an affidavit made, stating the facts and circumstances on which the application therefor is founded; nor shall any such writ be allowed or order made unless at least four days' notice in writing of the application therefor, shall have been served on the district attorney of said county, together with a copy of the affidavit on which such application is made. The district attorney shall then be allowed to

Laws 1846, ch. 142, § 1, as modified 1854, ch. 96, § 12, and 1857, ch. 361, §1; 2 R. S., 710, § 36.

introduce affidavits and other evidence in opposition to such application.1

§ 76. CONTENTS OF THE APPLICATION.

Such application shall set forth a copy of the indictment, or the substance thereof, the time when it was found, the proceedings thereon, if any, and the facts and circumstances rendering a removal thereof expedient, and shall be verified by affidavit.2

§ 77. WHEN ORDER TO BE GRANTED.

The officer, to whom such application is made, shall grant an order that such indictment be removed to, and that the defendant therein be tried at the next court of oyer and terminer, to be held in the county where such indictment was found, unless it shall appear that the application therefor was not made in due season, or that such removal will produce any injurious delay, or in any way lead to prevent a due prosecution of such indictment.3

§ 78. RECOGNIZANCE THEREON.

Before granting any such order to any defendant not being in actual confinement, such officer shall take from such defendant a recognizance, with sufficient sureties, in such penalty as such officer shall direct, conditioned that the person indicted shall appear at the next court of oyer and terminer to be held in the county where such indictment was found, and at such other time as such court shall appoint, and if no plea shall have been made to such indictment, that he will plead to the same, and that he will stand trial upon the issue joined or which shall be joined thereon, and that he will not depart such court of oyer and terminer without leave.4

§79. FILING THE RECOGNIZANCE AND DELIVERY OF THE ORDER.

No such order for the removal of an indictment shall be effectual in the case of any defendant not being in actual confinement, unless a recognizance taken, as hereinbefore directed, be delivered at the same time with such order, and be filed with the

clerk of the court, nor unless such order be delivered before any judgment rendered on such indictment, and before any juror shall be sworn to try such indictment.1

§ 80. OF THE REMOVAL OF INDICTMENTS FROM THE COURT OF OYER

AND TERMINER TO THE SUPREME COURT BEFORE TRIAL.

The removal of indictments before trial from the court of sessions to the court of oyer and terminer, as we have already seen, is by a verified application and order thereon of a Supreme Court justice. Should it become necessary to remove an indictment pending in the court of oyer and terminer, before trial, into the Supreme Court, the removal is effected by a writ of certiorari, and no such certiorari shall be effectual unless allowed by a justice of the Supreme Court, and no other officer has authority to allow such writ.2

A certiorari to remove a criminal action from the oyer and terminer to the Supreme Court may issue at the instance of the district attorney, as well as on application of the defendant.3

§ 81. RECOGNIZANCE UPON SUCH CERTIORARI.

Before allowing any writ of certiorari to remove an indictment from any court of oyer and terminer, the officer to whom application for such allowance shall be made shall take from the defendant a recognizance, with sufficient sureties, and in such penalty as such officer shall direct, conditioned that the defendant prosecuting such certiorari will appear at the return day thereof in the Supreme Court and plead to such indictment, if issue be not already joined thereon, and will not depart such court without its leave, and that he will obey the orders and rules of such court in respect to the trial of such indictment, and the judgment and all other proceedings thereon.*

§ 82. WHEN SUCH RECOGNIZANCE NOT REQUIRED.

Whenever any indictment shall be pending in any court of oyer and terminer, for the crime of treason against the people of this State, or of murder, or of arson in the first degree, and the per

12 R. S., 732, § 90.

2 2 R. S., 732, § 92.

Peo. v. Baker, 3 Abb., 42; 3 Park., 181; Vide 15 Barb., 153.

2 R. S., 733, § 93.

son indicted is in custody, a writ of certiorari to remove the same into the Supreme Court may be allowed by a justice thereof, without taking any recognizance for the appearance of such person in said court.1

§ 83. PROCEEDINGS AFTER REMOVAL INTO SUPREME COURT. Every indictment so removed shall be carried down for trial at the proper circuit court by the district attorney of the county in which the same was found, in the same manner in all respects as issues joined in the Supreme Court in civil cases, and the same proceedings, so far as they shall be applicable, shall be had thereon.2

Whenever an indictment is removed from a court of oyer and terminer, or any other court, into the Supreme Court, and a conviction is had thereon at a circuit court, judgment may be rendered thereon by such circuit court, or any other circuit court which may be held in the same county, with the same effect as a court of oyer and terminer may render judgment upon a conviction had therein.3

Where an indictment has been removed into the Supreme Court by certiorari before trial, it must be tried at the circuit court, like other issues pending in the Supreme Court, and not at the oyer and terminer.4

But where a criminal cause is removed by certiorari into the circuit court, the defendant is obliged to proceed to trial without waiting for any rule, and no notice of trial is necessary. A neglect to try is a forfeiture of his recognizance, but if there be good reasons for postponing his trial, a new recognizance may be entered into.5

§ 84. OF CHANGING THE PLACE OF TRIAL.

It may sometimes happen that a fair and impartial trial cannot be had in the county where the indictment was found, and it may become expedient to have the trial take place in some other locality, where the minds of the persons who are likely to serve