consent of the person making the confession, be examConfessions ined as a witness as to any confession made to him in clergyman. his professional character, in the course of discipline enjoined by the church to which he belongs.

made to a

In formation

given a phy

sician in his

professional capacity.

Communica

Fourth. A licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient.

SEC. 630. A public officer shall not be examined as a witness as to communications made to him in official public officer. confidence, when the public interest would suffer by the

tions made to

Judge or ju

disclosure.

SEC. 631. The judge, himself, or any juror, may be called as a witness by either party; but in such case it ror may be shall be in the discretion of the court or judge to order the trial to be postponed or suspended, and to take place before another judge or jury.

called as witness.

When an in

be used for a witness.

SEC. 632. When a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him. Any person, a resident of the proper county, may be summoned by any court or judge to appear before such court or judge, to act as interpreter shall terpreter in any action or proceeding. The summons shall be served and returned in like manner as a subpoena. Any person so summoned shall, for a failure to attend at the time and place named in the summons, be deemed guilty of a contempt, and may be punished accordingly. A person summoned as an interpreter shall receive such compensation as the court in its discretion may order, in addition to the fees allowed by law.

Sub pœna

CHAPTER III.-Means of Production.

SEC. 633. A subpoena may require not only the attendance of the person to whom it is directed at a partic

what may re- ular time and place, to testify as a witness, but

quire.

may

also

require him to bring any books, documents, or other things under his control, to be used as evidence. No

person shall be required to attend as a witness before any court, judge, or justice, or any other officer out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial.

SEC. 634. The subpoena shall be issued as follows:

First. To require attendance before the court, or at the trial of an issue therein, it shall be issued and under the seal of the court before which the attendance is required, or in which the issue is pending.

Second. To require attendance out of the court before a judge or justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of this territory, it shall be issued by the judge, justice, or any other officer before whom the attendance is required.

subpoena.

Third. To require attendance before a commissioner Issuance appointed to take testimony by a court of a foreign country or of the United States, or of any other state in the United States of America, or any other district or county within the territory, or before any officer or officers empowered by the laws of the United States to take testimony, it may be issued by any judge or justice of the peace in places within their respective jurisdiction, with like power to enforce attendance, and upon certificate of contumacy to said court to punish contempt of their process, as such judge or justice could exercise if the subdirected the attendance of the witness before their courts in a matter pending therein.

pœna

SEC. 635. The service of a subpoena shall be made by showing the original, and delivering a copy or a ticket containing its substance to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated and one day's attendance there. Such service may be made by any person.

SEC. 636. If a witness be concealed in a building or vessel so as to prevent the service of a subpoena upon him,

of

Service of subpœna.

Duty of witness when subpoenaed.

Duty of witness on witness stand.

Punishment of witness for contempt.

any court or judge, or any officer issuing the subpoena, may, upon proof by affidavit, of the concealment and of the materiality of the witness, make an order that the sheriff of the county serve the subpoena, and the sheriff shall serve it accordingly; and for that purpose may break into the building or vessel where the witness is concealed. SEC. 637. A person present in court or before a judicial officer may be required to testify in the same manner as if he were in attendance upon a subpoena issued by such court or officer.

any

SEC. 638. It shall be the duty of a witness duly served with a subpoena to attend at the time appointed with papers under his control required by the subpoena, to answer all pertinent and legal questions, and, unless sooner discharged, to remain until the testimony is closed.

SEC. 639. A witness shall answer questions, legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for felony; nor need he give an answer that will have a direct tendency to degrade his character, unless it be the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness shall answer as to the fact of his previous conviction for felony.

SEC. 640. Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit, or deposition, when required, may be punished as a contempt by the court or officer issuing the subpoena, or requiring the witness to be sworn; and, if the witness be a party, his complaint may be dismissed or his answer stricken out.

SEC. 641. A witness disobeying a subpoena shall also forfeit to the party aggrieved the sum of one hundred Liability of dollars, and all damages which he may sustain by the party injured. failure of the witness to attend; which forfeiture and damages may be recovered in a civil action.

witness to

SEC. 642. In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff of the county to arrest the witness, and bring him before the court or officer where his attendance was required.

Warrant for

arrest of witness.

commitment -what shall specify.

SEC. 643. Every warrant of commitment, issued by Warrant of a court or officer pursuant to this chapter, must specify therein particularly the cause of the commitment, and, if it be for refusing to answer a question, such question must be stated in the warrant. And every warrant to arrest, or commit, a witness pursuant to this chapter, must be directed to the sheriff of the county where the witness may be, and must be executed by him in the same manner as process issued by the district court.

SEC. 644. If the witness be a prisoner confined in a jail or prison within this territory for any other cause than a sentence for felony, an order for his examination in the prison, upon deposition, or for his temporary removal and production before a court, or officer, for the purpose of being orally examined, may be made as follows:

First. By the court itself, in which the action or special proceeding is pending.

Second. By a judge of the supreme court, district court, or probate judge of the county where the action or proceeding is pending, if before a judge or other person out of court.

How directed and executed.

Order for exwitness if a

amination of

prisoner.

Affidavit for

SEC. 645. Such order can only be made on affidavit showing the nature of the action or proceeding, order under the testimony expected from the witness, and its materiality.

last section.

When witness may be pro

SEC. 646. If the witness be imprisoned in the county where the action or proceeding is pending, for a cause other than felony, his production may be required. In duced if imall other cases his examination, when allowed, shall be taken upon deposition.

prisoned.

Action to ob

tain discov

ery dence.

of evi

Examination

of adverse party.

Rebuttal of testimony

CHAPTER III.-Of the Examination of Parties to an Action or Proceeding, and of Persons for whose Immediate Benefit such Action or Proceeding is Prosecuted or Defended.

SEC. 647. No action to obtain a discovery under oath, in aid of the prosecution or defense of another action or proceeding, shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner provided by this and the foregoing chapter.

SEC. 648. A party to an action or proceeding may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties; and for that purpose may be compelled, in the same manner, and subject to the same rules of examination, as any other witness, to testify at the trial, and he may be examined on a commission.

SEC. 649. The examination of a party thus taken taken under may be rebutted by adverse testimony.

last section.

Remedy in case adverse party refuse to testify.

Affidavit, be

fore whom

taken in ter

ritory.

Before whom

territory.

SEC. 650. If an adverse party refuse to attend or testify at the trial, or to give his deposition before trial, or upon a commission when required, his complaint or answer may be stricken out, and judgment be taken against him; and he may be also, in the discretion of the court, proceeded against as in other cases for contempt.

SEC. 651.

CHAPTER IV.-On Affidavit.

An affidavit, to be used before any court judge, or officer of this territory, may be taken before any judge or clerk of any court, or any justice of the peace or notary public in this territory.

SEC. 652. An affidavit taken in another territory, or any state of the United States, to be used in this terri

taken out of tory, shall be taken before a commissioner appointed by the governor of this territory to take affidavits and depositions in such other territory or state, or before any notary public or judge of a court of record having a seal.