Page:United States Statutes at Large Volume 76A.djvu/621

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–525–

-525(3) the name and residence of the witness, and that his testimony is material to the defense or the prosecution of the action; and (4) that the witness is about to leave the Canal Zone, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial. § 4294. Application for order to district court or magistrate (a) 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 application for conditional examination may be made to a magistrate. After the filing of the information or complaint in the district court, the application may be made to the district court or the judge thereof, or in case of his absence or inability to act to a magistrate. (b) Three days' notice of the application shall be given to the adverse party. § 4295. Order for examination If the court, judge or magistrate is satisfied that the examination of the witness is necessary, an order shall be made that the witness be examined conditionally, at a specified time and place, and before a judge or magistrate designated therein. § 4296. Examination not to take place when grounds nonexistent If, at the time and place designated, it is shown to the satisfaction of the court, judge or magistrate that the witness is not about to leave the Canal Zone, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination may not take place. § 4297. Presence of defendant at examination The defendant has the right to be present in person and with counsel at the examination, and if the defendant is in custody, the officer in whose custody he is, shall be informed of the time and place of the examination and shall take the defendant thereto and keep him in the presence and hearing of the witness during the examination. § 4298. Subpoena for witness (a) The attendance of the witness may be enforced by a subpoena, issued by the judge or magistrate before whom the examination is to be taken. (b) The subpoena may be served, and attendance of the witness may be required, anywhere within the Canal Zone. § 4299. Testimony; reduction to writing; authentication The testimony given by the witness shall be reduced to writing and properly authenticated. § 4300. Transmittal of deposition to court The pudge or magistrate shall seal up the deposition taken and transmit it to the clerk of the court in which the action is pending or may come for trial. § 4301. Use of deposition in evidence The deposition, or a certified copy thereof, may be read in evidence by eitlier party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness or infirmity, or of his continued absence from the Canal Zone. Upon reading the deposition in evidence, the same objections may be taken to a question or answer contained therein as if the witness had been examined orally in coui"t.