gerous 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. For the extent and limitation of the power of such commission, see ante, § 658, notes. § 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, judgment or execution as the case may be, or be legally discharged. 2 R. S. 6th Ed. 847, § 31. § 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. 2 R. S. 6th Ed. 848, § 32. 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. 666. No public offense to be compromised, except as provided in this § 663. (Amended 1884.) 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. 3 R. S. 6th Ed. 1024, §§ 70. 73. § 664. (Amended 1884.) Compromisetc be by permission of the court; order thereon.-If the 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. Id. A misdemeanor cannot be compounded by the parties unless by consent of the court or with the approbation of the district attorney. Gilmore's case, 2 C. H. Rec., 29.) (a) After conviction.-An assault and battery cannot be compromised after conviction.-(People v. Bishop, 5 Wend., 111.) § 665. Order a bar to another prosecution.-The order authorized by the last section is a bar to another prosecution for the same offense. Id.. § 72. § 666. No public offense to be compromised, except as provided in this chapter.—No crime can be compromised, nor can any proceeding for the prosecution or punishment thereof upon a compromise be staid, except as provided in sections six hundred and sixty-three and six hundred and sixty-four. (See Penal Code, § 125 et seq.) CHAPTER II. DISMISSAL OF THE ACTION BEFORE OR AFTER INDICTMENT, OR WANT OF PROSECUTION OR OTHERWISE. SECTION 667. Dismissal, when a person held to answer is not indicted at the next term thereafter. 668. When a person indicted is not brought to trial at the next term thereafter. CHAPTER IV. EXAMINATION OF WITNESSES ON COMMISSION. SECTION 636. Witness residing out of the state, to be examined for defendant, as provided in this chapter. 637. In what cases defendant may apply for order to examine witnesses on commission. 638. Commission, defined. 639. Application for commission, on what facts to be founded. 640. If during term, to be made to the court. 641. If not during term, to whom to be made. 642. Notice of application, when required and how given. 643. Order for commission, when granted. 644. Trial to be staid until execution and return of commission. 645. Interrogatories, and notice of settlement. 646. Cross-interrogatories, and notice of settlement. 647, 648. What may be inserted in interrogatories. 649. Direction as to return of commission. 650. Commission, how executed. 651. Copy of last section to be annexed to commission. 652, 653. Commission, how returned, when delivered to agent for that purpose. 654. When and how filed. 655. Commission returned by mail, how disposed of. 656. Commission and return to be open for inspection, and copies to be furnished. 657. Deposition to be read in evidence; what objections may be taken thereto. § 636. Witness residing out of the state, to be examined for defendant, as provided in this chapter.-When an issue of fact is joined upon an indictment, the defendant may have any material witness residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise. 3 R. S., 6th Ed. 1025, § 77; Id., 654, § 11. § 637. In what cases defendant may apply for order to examine witness on commission._When a material witness for the defendant resides out of the state, the defendant may apply for an order that the witness be examined on a commission. (a) Does not apply to special proceedings.-The code only authorizes a commission to take testimony to be read on the trial of an indictment. (People v. Haight, 3 N. Y. Cr. R., 60.) (b) Does not apply to examinations to report on the sanity of a defendant.-The testimony of a witness residing out of the state cannot be taken on commission to be read before commissioners appointed to examine and report on the sanity of a defendant. (Ib.) (c) New commissions.-New commissions for examination of same witness or a re-execution may be ordered. (Fisher v. Dale, 17 Johns, 343; Baker v. Spencer, 47 N. Y., 562.) § 638. Commission defined.—A commission is a process issued under the seal of the court and the signature of the clerk, directed to one or more persons, designated as commissioners, authorizing them to examine the witness upon oath, on interrogatories annexed thereto, and to take and return the deposition of the witness, according to the directions given with the commission. $639. Application for commission, on what facts to be founded.— The application must be made upon affidavit, showing: 1. The nature of the crime charged; 2. The state of the proceedings in the action, and that issue of fact has been joined therein; 3. The name of the witness, and that his testimony is material to the defense of the action; 4. That the witness resides out of the state. (a) Need not state nature of evidence.-Need not state expected proof. (Eaton v. North, 7 Barb., 631.) Affidavit may be made by agent or attorney. (Id.) () Must be named.-The witness must be named in the commission. (Wright v. Jessup, 3 Duer, 642.) (c) Must be particular.-The application must state special circumstances. (Hackley v. Patrick, 2 Johns., 478.) (d) Materiality of witness.-An affidavit for a commission is sufficient if it show the witness to be material or necessary for the prosecution or defense as he is advised, and is out of the jurisdiction of the court. (Brackett v. Dudley, 1 Cow., 209; Beach v. New York, 14 Hun. 79.) (e) Attorney may make application. The affidavit may be made by the attorney or agent. (Murray v. Kirkpatrick, 1 Cow., 210; Corbett v. De Comeau, 54 How., 506.) Or by a third party. (Demar v. Van Zant, 2 Johns. Cas., 69.) (f) Nature of crime.—Affidavit must state positively the nature of the action. (Norman v. Pearce, 56 How., 251.) § 640. If during term, to be made to the court.-The application, if made during the term, must be made to the court. 3 R. S., 6th Ed. 655, §§ 13, 14. § 641. If not during term, to whom to be made. If not made during the term, the application may be made as follows: 1. When the indictment is pending in a court of oyer and terminer, or in a court of sessions, except in the city and county of New York, to a judge of the supreme court or to the county judge; 2. When the indictment is pending in the court of general sessions in the city and county of New York, to the recorder or city judge or judge of general sessions, or one of the judges of the court of common pleas of that city; 3. When the indictment is pending in a city court, to the recorder or judge of the court in which it is pending. § 642. (Amended 1882.) Notice of application, when required and how given.—If the application be made to the court, it may be without notice to the district attorney, unless the court direct notice to be given, in which case it must prescribe the manner of giving the same. If made to one of the officers mentioned in the last section, the application must be upon five days' notice to the district attorney served, with a copy of the affidavit upon, which it is founded. § 643. Order for commission, when granted.-If the court or officer to whom the application is made be satisfied that the witness resides out of the state, and that his examination is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and that the people be permitted to join in the commission, and to examine witnesses in support of the indictment. 3 R. S., 6th Ed. 1025, § 77. (a) Must name commissioners.-The application for the commission names the commissioners unless cause is shown. (Harris v. Wilson, 2 Wend., 627. (b) Must be under seal.—A commission issued by a court of record to take testimony, having no seal attached is a nullity, and depositions taken under it are not admissable as evidence. (Ford v. Williams, 24 N. Y., 359. Held in Churchill v. Carter, 15 Hun, 385 that in a civil case attorneys could waive a seal. The clerk's signature not essential when the commission is signed by the judge on whose authority it is issued. § 644. Trial to be staid until execution and return of commission.— If the application for a commission be granted, the court or judge must insert in the order therefor, a direction that the trial of the indictment be staid for a specified time, reasonably sufficient for the execution and return of the commission. 3 R. S. 6th Ed., 1025, § 78. When stay will be vacated. Voss v. Fielden, 2 Sandf., 690.) § 645. Interrogatories, and notice of settlement.-When the commission is ordered, the defendant must serve upon the district attorney, and the district attorney if he intend to join in the commission and examine witnesses in support of the indictment, must serve upon the defendant or his counsel, a copy of the interrogatories to be an nexed thereto, with a notice of two days of their settlement, before an officer who might have granted the order out of term, as provided in section six hundred and forty-one. Id. (a) Interrogatories, return of.--The direction of the manner of returning the commission must be signed by the officer settling the interrogatories. Crawford v. Loper, 25 Barb., 449.) (b) Settlement of.-On settling the interrogatories the judge should allow only such as relate to the issue to be tried on the action. (McDonald v. Garrison, 2 Hilt., 510.) (e) Indorsement of allowance.—An indorsement on the commission of the allowance of the interrogatories by the judge is sufficient, if it refer to them as annexed and accompanying the commission. (Halleran v. Field, 23 Wend., 38.) § 646. Cross-interrogatories, and notice of settlement.-The district attorney, and the defendant, may, in the same manner, serve cross-interrogatories, to be annexed to the commission, with the like notice of the settlement thereof. § 647. What may be inserted in interrogatories.-In the interrogatories, either party may insert any question pertinent to the issue. (a) Only such as are pertinent allowed.-On settling the interrogatories it is the duty of the judge to allow only such as relate to the issues to be tried in the action. (McDonald v. Garrison, 2 Hilt., 510. |