Chapter 57. EVIDENCE AND WITNESSES.
Article 1. Legislative Acts and Resolutions.
Revisers’ Note.—Sections of c. 130, Code 1923, , omitted from this chapter, are disposed of as fole lows: Sections 9, 10, 11 are in art. 2, c. 39; §§12, 13, 14, 15, 17, 18 are in art. &, c. 39; §16 is incorporated in §10, art. 1, and §9, art. 2, c. 59; §§40 r and 41, are in art. 1, c. 59; §42 is in art. 2, c. 59; o §46 is omitted because covered by §19, art. 4, c. 56. s
§1. Copies of Legislative Journals, Acts and Resolutions.—Copies of the journal of either house of the legislature, and copies of the acts and resolutions of the legislature, which have been or shall hereafter be published by authority thereof, shall be received as evidence for any purpose for which the original journal, acts or resolutions could be received and with as much effect.(Code 1849, c. 16, §16, c. 176, §2; Code 1860, c. 16, §16, c. 176, §2; Code 1868, c. 13, §3, c. 130, §2; 1882, c. 143, §3, c. 160, §2; Code 1923, c. 13, §3, c. 130, §2.)
Revisers’ Note.—This section is a composite of §2, c. 130, and §3, c. 13, Code 1923.
§2. Local or Private Acts and Resolutions of Legislatures; How Given in Evidence; When Judicially Noticed.—Local or private acts and resolutions of the legislature may be given in evidence without being especially pleaded; and an appellate court shall take judicial notice of such as appear to have been relied on in the court below.(Code 1849, c. 176, §1; Code 1860, c. 176, §1; Code 1868, c. 130, §1; 1882, c. 160, §1; Code 1923, c. 130, §1.)
Revisers’ Note.—For clarity the words “local or private” are inserted at the beginning of the section in lieu of the words “though local or private” which were inserted after the word “legislature.” Courts take judicial notice of all public or general acts of the legislature. See Hart v. B. & O. R. R. Co., 6 W. Va. 336, 349; Wigmore Ev., (2d ed.) §2572.
§3. Copies of Virginia Statutes.—The printed copies of the acts and resolutions of the general assembly of Virginia and of the statutes and codes of that state, with the supplements to and continuations of the same, and the ordinances of the convention which assembled at Wheeling on the eleventh day of June, eighteen hundred and sixty-one, shall continue to be received in evidence within this State, in like manner as they were receivable when it was part of the State of Virginia.(Code 1849, c. 16, §16; Code 1860, c. 16, §16; Code 1868, c. 13, §2; 1882, c. 143, §2; Code 1923, c. 13, §2.)
Revisers’ Note.—The words “within the same,” which were after the word “receivable,” are omitted.
§4. Judicial Notice of Laws of Other States or of the United States.—Whenever in any case it becomes material to ascertain what the law, statutory or other, of another state or country, or of the United States, is, or was at any time, the court, judge, or magistrate shall take judicial notice thereof, and may consult any printed book or other document, purporting to contain, state or explain the same, and consider any testimony, information or argument that is offered on the subject.(Code 1868, c. 13, §4; 1882, c. 143, §4; Code 1923, c. 13, §4.)
Revisers’ Note.—The words “or other document” are inserted after the words “printed book.”
§5. Notice by Courts and Officers of Signatures of Judges or Governor.—All courts and officers shall take notice of the signature of any of the judges, or of the governor, of this State, to any judicial or official documents.(Code 1849, c. 176, §3; Code 1860, c. 176, §3; Code 1868, c. 130, §3; 1882, c. 160, §3; Code 1923, c. 130, §3.)
§6. Copies of Deeds Recorded Before 1814; Rights of Creditors and Purchasers Without Notice.—Copies of deeds, acknowledged or proved and certified according to the act of the general assembly of Virginia, of the thirteenth of December, seventeen hundred and ninety-two, and placed upon record after the expiration of two years, the period prescribed by the act of the twenty-fifth of December, seventeen hundred and ninety-four, but before the passage of the act of the seventh of February, eighteen hundred and fourteen, shall be received in evidence, and have all the force and effect of copies of deeds recorded within two years, the period prescribed as aforesaid: Provided, That nothing in this section shall be construed to affect the rights of creditors and subsequent purchasers without notice.(Code 1860, c. 176, §4; Code 1868, c. 130, §4; 1882, c. 160, §4; Code 1923, c. 130, §4.)
§7. Copies of Records or Papers in Public Offices; Certificate of Auditor.—A copy of any record, bond or paper in the office of the clerk of either house of the legislature or of any court, or in the office of the secretary of state, treasurer or auditor, or in the office of the surveyor of lands of any county, or in the office of any other public officer, attested by the appropriate officer, which shall include the secretary of a board or commission, in whose office the same is, may be admitted as evidence in lieu of the original. The certificate of the auditor of the fact and time of the return of any real estate as delinquent, or of the sale thereof for taxes, shall be prima facie evidence of what is stated in such certificate. Any such copy or certificate purporting to be sealed, or signed and sealed, or signed alone, by any such officer, may be admitted as evidence without any proof of the seal or signature, or of the official character, of the person whose name is signed to it. The certificate of the auditor of the payment or nonpayment at any time of taxes on forfeited or delinquent lands, or of their not having been entered on the land books of the county or counties wherein the same were chargeable with taxes shall, in any suit in relation to such lands, be prima facie evidence of what is stated in such certificate, provided it be filed with the papers of said suit and notice thereof be given to the opposite party or his attorney at least twenty days before the first day of the term at which it is to be offered as evidence. When the certificate purports to be signed by the said auditor, it may be admitted as evidence without proof of his signature.(Code 1849, c. 176, §4; Code 1860, c. 176, §5; Code 1868, c. 130, §5; 1882, c. 160, §5; Code 1923, c. 130, §5.)
Revisers’ Note.—After the word “record” in the first sentence the word “bond,” is inserted in order to cover a provision of part of §4, c. 10, Code 1923. After the word “office,” first occurring, the words “of the clerk of either house of the legislature or” are inserted, and the word “clerk’s,” preceding the same word “office,” is omitted. After the word “county,” first occurring, the words “or in the office of any other public officer attested by the appropriate officer in whose office the same is” are substituted for the words ‘‘attested by the officer in whose office the same is.” The reason for this change is to have one comprehensive section covering all public officers, such as the state road commission, copies of whose records were provided for by sections in other parts of the Code; e. g., copies of road maps, c. 43, §18, Code 1923. The same reasons that apply to the public officers enumerated in this section apply to all public officers; and it seems inadvisable to enumerate them specifically as that prevents flexibility.
Legislative Note.—After the words “appropriate officer” near the end of the first sentence, the words “which shall include the secretary of a board or commission” are added to clarify the meaning.
§8. When Copy Filed in a Suit May be Filed in Another; Defendant to Plead Thereto.—Such a copy of any writing filed in a suit may be filed in another suit on the same writing, and the defendant shall plead thereto as if the original were filed.(Code 1849, c. 176, §5; Code 1860, c. 176, §6; Code 1868, c. 130, §6; 1882, c. 160, §6; Code 1923, c. 130, §6.)
§9. Use of Records or Papers in Public Offices in Virginia.—The provisions in the two preceding sections contained shall apply to a copy of any record or paper in the clerk’s office of any court in the State of Virginia, or in the office of the secretary of the commonwealth, treasurer, register of the land office, or either auditor, or any surveyor of lands of that state, attested as aforesaid; and to any certificate of the auditor of public accounts of that state as to the return of any real estate as delinquent, or sale thereof for taxes, or payment or nonpayment of taxes on forfeited or delinquent lands, or nonentry of lands on the books of the commissioners of the revenue: Provided, That such certificate of the auditor as to the payment or nonpayment of taxes on forfeited or delinquent lands, or nonentry of such lands on the books of the commissioner of the revenue, be filed with the papers in any suit in relation to such lands, and notice thereof be given to the opposite party or his attorney, at least forty days before the first day of the term at which it is offered as evidence.(Code 1868, c. 130, §7; 1882, c. 160, §7; Code 1923, c. 130, §7.)
§10. Certificate of Clerk of County Court of Entry or Nonentry for Taxation or Nonpayment of Taxes or Sale of Land.—The certificate of the clerk of any county court of the entry or nonentry of any tract of land for taxation on the land books of any county wherein the land ought to have been charged or of the delinquency of any such land for the nonpayment of taxes charged thereon, and the amount of the taxes charged as delinquent, or such clerk’s certificate of the sale of such land for the nonpayment of taxes, shall, in any suit in relation to such lands, be prima facie evidence of what is stated in such certificate: Provided, That it be filed with the papers of said suit and notice thereof given to the opposite party or his attorney, at least twenty days before the first day of the term at which it is to be offered as evidence. When a certificate purports to be signed by any such clerk, it may be admitted as evidence without proof of his signature.(1872-3, c. 201, §1; Code 1923, c. 130, §5a.)
Revisers’ Note.—After the word “delinquent,” near the middle of the section, the words “or such clerk’s certificate of the sale of such land for the nonpayment of taxes” are inserted. The words “land books” are used in the first sentence in lieu of the words “of the commissioner of the revenue or assessor,” in conformity with the language of §6, art. 13, Const.
§11. When Original Papers in a Cause May Be Removed From Clerk’s Office; Copy Retained.—The court in the clerk’s office whereof there is an original paper filed in a cause (although decided) may, for good cause, order it to be delivered to any person, retaining in its stead a certified copy thereof, and make any order to prevent the improper use of the original.(Code 1849, c. 176, §6; Code 1860, c. 176, §7; Code 1868, c. 130, §8; 1882, c. 160, §8; Code 1923, c. 130, §8.)
§12. Records and Proceedings of Courts of Other States or of the United States; Proof; Full Faith and Credit.—The records and judicial proceedings of any court of the United States, or of any state or territory, or of any country subject to the jurisdiction of the United States, shall be proved or admitted in any court in this State, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within this State as they have by law or usage in the courts of the state or jurisdiction from which they are taken.(Code 1849, c. 176, §14; Code 1860, c. 176, §15; Code 1868, c. 130, §19; 1882, c. 160, §19; Code 1923, c. 130, §19; 2 Stat. 299; R. S. §905.)
Revisers’ Note.—As the federal Const., art. 4, §1, empowers the congress to “prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof,” the wording of a §19, c. 130, Code 1923, is changed in this respect so as to have the same effect, and as nearly as possible the same wording, as the federal statute, R. S. §905.
§13. Public Records Not Pertaining to a Court; How Authenticated; Full Faith and Credit.—All records and exemplifications of books, which may be kept in any public office of the United States, or of any state, or territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in this State, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the state or territory or country, that the said attestation is in due form, and by the proper officer. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the state, territory, or country, aforesaid, in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within this State as they have by law or usage in the courts or offices of the state, territory, or country, as aforesaid, from which they are taken.(Code 1849, c. 176, §15; Code 1860, c. 176, §16; Code 1868, c. 130, §20; 1882, c. 160, §20; Code 1923, c. 130, §20; 16 Stat. 419; R. S. §906.)
Revisers’ Note.—As the federal Const., art. 4, §1, empowers the congress to “prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof,” the wording of this section is changed in this respect so as to have the same effect, and as nearly as possible the same wording, as the federal statute, R. S. §906.
§14. Documents and Copies Executed Out of State; How Authenticated.—Every deed or power of attorney executed out of this State, the acknowledgment or proof of which is certified so that it might be admitted to record under article one, chapter thirty-nine of this Code, and every policy of insurance, charter party, copy from a record in any foreign court or from a register of births and marriages in any place out of the United States, if it be attested by a notary public, under his seal of office, that such policy, charter party, record or register was made, entered or kept in due form according to the law of the place in which it was made, entered or kept, and that such copy is true, and the official character of such notary be certified to by any court of record, or the mayor or other chief magistrate of any county, city, town or borough, or under the great seal of the state, kingdom, province, island or colony in which such notary may reside, shall be evidence in any court in this State.(Code 1849, c. 176, §16; Code 1860, c. 176, §17; Code 1868, c. 130, §21; 1882, c. 160, §21; Code 1923, c. 130, §21.)
Article 2. Writings and Statements of Private Persons.
§1. Writing in Handwriting of Alleged Writer Usable for Comparison.—In any civil suit or proceeding at law or in equity, and in any criminal action or proceeding, any writing proved to the satisfaction of the judge to be in the handwriting of the person who is alleged to have written it, and not written for purposes of comparison, except under the supervision of the judge, may be used with or without the testimony of witnesses for the purpose of making a comparison with a disputed writing as evidence of the genuineness or otherwise of such disputed writing.(1907, c. 39, §1; Code 1923, c. 130, §21a.)
Revisers’ Note.—This section substitutes for “genuine” the words “in the handwriting of the person who is alleged to have written it, and not written for purposes of comparison, except under the supervision of the judge.” This change is made in order to clarify the meaning of the word “genuine,” since the case of Bank of Pennsboro v. Barker, 75 W. Va. 244, has left the meaning of the word “genuine” uncertain. See State v. Koontz, 31 W. Va., 127, characterizing a signature written for purposes of comparison as a “genuine” signature.
§2. When Attesting Witness Need Not Be Called.—It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite; and such instrument may be proved by admission, or otherwise, as if there had been no attesting witness thereto.
Revisers’ Note.—This section is new and follows the wording of the Eng. Statute (1854), St. 17 and 18 Victoria, c. 125, §26. This change was recommended by the Common Law Procedure Commission (Jervis, Martin, Walton, Bramwell, Willes, Cockburn). It is strongly advocated in Wigmore Ev. (2d ed.) §§1288, 1290, to which reference is made for the reasons therefor. This change has also been made in Canada and a similar change in many American states, e. g., Ill., Md., Mass., N. Y.
§3. Statement by Accused Upon Legal Examination.—In a criminal prosecution other than for perjury, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.(Code 1849, c. 199, §22; Code 1860, c. 199, §22; Code 1868, c. 152, §20; 1882, c. 151, §20; Code 1923, c. 152, §20.)
Revisers’ Note.—This section changes §20, c. 152 Code 1923, which reads: “In a criminal prosecution other than for perjury, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.” Mr. Wigmore deems a change of this sort so important that he devotes 36 pages of his work on Evidence to showing the fallacy and unworkable nature of laws such as said §20, and to showing the wisdom of some such change as made by this section. See Wigmore, Ev. (2d ed.) §§842 to 852, The English law is in substantial effect the same as this section. See R. v. Scott 1 D. & B. 47, where Campbell, C. J., said: “The confession of a crime, to be admissible against the party confessing, must be voluntary; but this only means that it shall not be induced by improper threats or promises, because under such circumstances the party may have been influenced to say what is not true, and the supposed confession cannot be safely acted on. Such an objection cannot apply to ... a lawful examination in the course of a judicial proceeding.” The law in the various states is conflicting and confusing. “It cannot be said that the rulings in the U. S. represent any marked attitude.” Wig., Ev., (2d ed.) §852.
Legislative Note.—The provisions of §20, c. 152, Code 1923, are retained in lieu of the above section as reported by the revisers.
§4. Evidence in Mitigation of Damages in Actions for Defamation; Truth a Justification.—In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and after notice in writing of his intention to do so (given to the plaintiff at the time of, or for, pleading to such action) may give in evidence in mitigation of damages that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so, in case action shall have been commenced before there was an opportunity of making or offering such apology.(Code 1849, c. 176, §44; Code 1860, c. 176, §45; Code 1868, c. 130, §47; 1882, c. 160, §47; Code 1923, c. 130, §47.)
Article 3. Competency of Witnesses.
§1. Competency of Party or Interested Person to Testify; Transactions With Decedent or Lunatic.—No person offered as a witness in any civil action, suit or proceeding, shall be excluded by reason of his interest in the event of the action, suit or proceeding, or because he is a party thereto, except as follows: No party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, insane or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such person, or the assignee or committee of such insane person or lunatic. But this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined on his own behalf, nor as to which the testimony of such deceased person or lunatic shall be given in evidence: Provided, however, That where an action is brought for causing the death of any person by a wrongful act, neglect or default under article seven, chapter fifty-five of this Code, the physician sued shall have the right to give evidence in any case in which he is sued; but in this event he can only give evidence as to the medicine or treatment given to the deceased, or operation performed, but he cannot give evidence of any conversation had with the deceased. In any suit or proceeding in which a county is interested, no person shall be incompetent as a witness by reason of his being an inhabitant of the county or liable to county levies, or a member of the county court.(Code 1849, c. 176, §§17, 18; Code 1860, c. 176, §§18, 19; Code 1868; c. 130, §§22, 23; 1872-3, c. 114, §63; 1881, c. 5, §44; 1882, c. 160, §23; 1897, c. 44, §23; Code 1923, c. 39, §44; c. 130, §23.)
Revisers’ Note.—The last paragraph is taken from §44, c. 39, Code 1923.
§2. Competency of Husband and Wife to Testify.—Husband and wife shall be competent witnesses to testify for or against each other in all cases, civil and criminal, except as otherwise provided.[Code 1849, c. 199, §21; Code 1860, c. 199, §21; Code 1868, c. 130, §23(5), c. 152, §19; 1881, c. 29, §1; 1882, c. 151, §19, c. 160, §22; 1919, c. 31, §19; Code 1923, c. 130, §22, c. 152, §19.]
Revisers’ Note.—This section and the following two sections are modifications of §22, c. 130 and portions of §19, c. 152, Code 1923. The changes are to clarify the meaning of said §§22 and 19 and to alleviate what Wigmore calls the “antiquated injustice” involved in the old testimonial disqualifications on the part of husband and wife. The reasons are set forth fully in Wigmore, Ev. (2d ed.) §§601, 602. The rest of said §19 is covered in §6 of this article.
§3. Competency of Husband and Wife in Criminal Cases; When Husband or Wife Compellable to Testify Against Each Other; Comment on Failure to Testify.—In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled, nor, without the consent of the other, allowed to be called as a witness against the other except in the case of a prosecution for an offense committed by one against the other, or against the child, father, mother, sister or brother of either of them. The failure of either husband or wife to testify, however, shall create no presumption against the accused, nor be the subject of any comment before the court or jury by anyone.[Code 1849, c. 199, §21; Code 1860, c. 199, §21; Code 1868, c. 130, §23(5), c. 152, §19; 1881, c. 29, §1; 1882, c. 151, §19, c. 160, §22; 1919, c. 31, §19; Code 1923, c. 130, §22, c. 152, §19.]
Revisers’ Note.—See revisers’ note to §2 of this article.
§4. Confidential Communications Between Husband and Wife.—Neither husband or wife shall, without the consent of the other, be examined in any case as to any confidential communication made by one to the other while married, nor shall either be permitted, without such consent, to reveal in testimony after the marriage relation ceases any such communication made while the marriage existed.[Code 1849, c. 199, §21; Code 1860, c. 199, §21; Code 1868, c. 130, §23(5), c. 152, §19; 1881, c. 29, §1; 1882, c. 151, §19, c. 160, §22; 1919, c. 31, §19; Code 1923, c. 130, §22, c. 152, §19.]
Revisers’ Note.—See revisers’ note to §2 of this article.
§5. Competency of Convicts as Witnesses.—Conviction of felony or perjury shall not render the convict incompetent to testify, but the fact of conviction may be shown in evidence to affect his credibility.(Code 1849, c. 199, §19; Code 1860, c. 199, §19; Code 1868, c. 152, §17; 1882, c. 151, §17; Code 1923, c. 152, §17.)
Revisers’ Note.—This section changes §17, c. 152 Code 1923. Such a change is advocated in Wigmore, Ev. (2d ed.) §§519, 524; and substantially such a change has been made in England, Canada and, with or without modifications, in most American states, e. g., N. Y., Mass., and Va.
§6. Competency of Accused to Testify; Waiver of Privilege by Testifying; Comment on Failure to Testify.—In any trial or examination in or before any court or officer for a felony or misdemeanor, the accused shall, with his consent (but not otherwise), be a competent witness on such trial or examination; and if he so voluntarily becomes a witness he shall, as to all matters relevant to the issue, be deemed to have waived his privilege of not giving evidence against himself and shall be subject to cross-examination as any other witness; but his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by any one.(Code 1849, c. 199, §21; Code 1860, c. 199, §21; Code 1868, c. 152, §19; 1881, c. 29, §1; 1882, c. 151, §19; 1919, c. 31, §19; Code 1923, c. 152, §19.)
Revisers’ Note.—This section down to the first semicolon is, with respect to the subject matter dealt with in this section, the same as §19, c. 152, Code 1923, except that the phrase “with his consent” is substituted for the phrase “at his or her own request.” After the first semicolon this section is almost verbatim the same as §4778, Code Va. 1919, except that the Va. section ends thus: “before the court or jury by the prosecuting attorney.” And the Va. section does not contain the phrase “as to all matters relevant to the issue.” If the accused voluntarily consents to testify he should be considered a competent witness just as much as if he requests to testify, as the same reasons apply in each case. Hence the substitution of consent for request. This substitution makes the W. Va. law uniform in this respect with what is believed to be the better view. See Wig., Ev., (2d ed.,) §§579 and 488 (collecting statutes). The provision that by voluntarily becoming a witness the accused waives his privilege against self-crimination “as to all matters relevant to the issue” represents the better view on this question, and the view which “seems to find the greatest support.” Wig., Ev., (2d ed.) §2276. There are several rules in the United States as to how far, if at all, an accused waives his privilege by voluntarily taking the stand. The law on this point in W. Va. is not very clear. This provision is intended to remove any doubt as to what is the W. Va. law in this respect. The provision as to no comment where there is a failure to testify is the same in effect as the preexisting law, except that the preexisting law prohibited “reference to” as well as “comment upon” such failure. The provision against “reference to” is unusual, and is unduly narrow. The other portions of said §19 are covered in §§2, 3, 4 of this article.
§7. Race or Color Not an Incompetency.—No person shall be incompetent as a witness on account of race or color.(Code 1849, c. 176, §19; Code 1860, c. 176, §20; 1866, c. 89, §1; Code 1868, c. 130, §24; 1882, c. 160, §24; Code 1923, c. 130, §24.)
§8. Cases in Which Chiropractor Not Competent Witness.—No practitioner of chiropractic shall be permitted to qualify as a competent witness, in so far as medical testimony or medical facts may be concerned, in any personal accident or injury suit or action in any court in this State.(1925, c. 20, §15.)
Revisers’ Note.—This section comprises the second paragraph of §15, c. 20, Acts 1925. The word “licensed” before “practitioner” is omitted because of the implication that an unlicensed practitioner would be a competent witness.
Article 4. Depositions and Perpetuation of Testimony.
§1. Taking and Using Depositions.—In any pending case the deposition of a witness, whether a party to the suit or not, may, without commission, be taken in or out of this State by a justice, or notary public, or by a commissioner in chancery, or before any officer authorized to take depositions in the county or state where they may be taken. And such depositions may be taken in shorthand, or stenographic characters or notes, and shall be written out in full and transcribed into the English language by the stenographer taking the same, and certified by the officer before whom the depositions are taken; and if certified by such officer under his hand and if further certified by him that such stenographic characters and notes were correctly taken and accurately transcribed by him, or under his direction and supervision, and that the witnesses were duly sworn, such depositions may be received and read in evidence without proof of the signature to such certificate and without the signature of the witness to such depositions. And in case the stenographer taking such depositions is not the officer before whom the same are being taken, then such stenographer, before proceeding to take any of said depositions, shall be sworn to take correctly and accurately transcribe the same, and the certificate of the officer before whom the depositions are taken shall state that the stenographer was so sworn.(Code 1849, c. 176, §28; Code 1860, c. 176, §29; Code 1868, c. 130, §33; 1882, c. 160, §33; 1909, c. 44, §33; Code 1923, c. 130, §33.)
§2. Taking Depositions Out of State; Authentication.—On affidavit that a witness resides out of this State, or is out of it in the service thereof, or of the United States, or is out of this State and for justifiable reasons will probably be out of this State until after the trial of the case in which his testimony is needed, his deposition may be taken by or before any commissioner appointed by the governor of this State, or any justice, notary public or other officer authorized to take depositions in the state wherein the witness may be, or, if the deposition is to be taken in a foreign country, by or before of such commissioner or commissioners as may be agreed upon by the parties or appointed by the court, or, if there be none such, by or before any American minister, plenipotentiary, charge d’affairs, consul general, consul, vice consul, consular agent, vice deputy consular agent, commercial agent or vice commercial agent, appointed by the government of the United States, or by or before the mayor or other chief magistrate of any city, town or corporation in such country or any notary public therein. Any person or persons taking such deposition may administer an oath to the witness and take and certify the deposition with his official seal annexed, and if he have none, the genuineness of his signature shall be authenticated by some officer of the same state or country, under his official seal.(Code 1849, c. 176, §29; Code 1860, c. 176, §30; Code 1868, c. 130, §34; 1882, c. 160, §34; Code 1923, c. 130, §34.)
Revisers’ Note.—The words “or is out of this State and for justifiable reasons will probably be out of this State until after the trial of the case in which his testimony is needed” are new, being added to cover cases where the reason of the statute applies.
§3. Notice to Take Depositions; When Deposition May be Read In Equity.—Reasonable notice shall be given to the adverse party of the time and place of taking every deposition. And in a suit in equity a deposition may be read if returned before the hearing of the cause, although after an interlocutory decree, if it be as to a matter not thereby adjudged, and be returned before a final decree.(Code 1849, c. 176, §30; Code 1860, c. 176, §31; Code 1868, c. 130, §35; 1882, c. 160, §35; Code 1923, c. 130, §35.)
§4. Reading Deposition In a Case at Law; Compelling Deponent Out of County to Attend.—A deposition in a case at law, taken on such notice under the three preceding sections, may be read in such case, if when it is offered, the deponent be dead, or out of this State, or one of its judges, or in any public office or service the duties of which prevent his attending the court, or be unable to attend it from sickness or other infirmity, or be out of the county in which the case is pending, or, because of lapse of time or mental infirmity, be unable to remember any material part of what he had deposed to. But when the only ground of reading a deposition is that the deponent is out of the county, on motion to the court, before the commencement of the trial, the court may, for good cause shown, require such deponent to attend in person.(Code 1849, c. 176, §31; Code 1860, c. 176, §32; Code 1868, c. 130, §36; 1882, c. 160, §36; Code 1923, c. 130, §36.)
Revisers’ Note.—The words “or, because of lapse of time or mental infirmity, be unable to remember any material part of what he had deposed to” are new, being inserted to cover cases falling within the reason for permitting the use of depositions. A deponent who has forgotten is, for purposes of testifying, the same as if he were “dead.” The words “deponent” formerly read “witness.”
§5. When Deposition May be Read by Opponent.—When a deposition has been filed, if not read on the trial by the party taking it, it may be read by the other party.(Code 1849, c. 176, §32; Code 1860, c. 176, §33; Code 1868, c. 130, §37; 1882, c. 160, §37; Code 1923, c. 130, §37.)
§6. Taking Deposition After Judgment, Decree or Order; Reading Such Deposition.—In any case wherein there has been a judgment, decree or order from or to which an appeal, writ of error or supersedeas has been or might be allowed, a deposition may be taken for any party to such case, or for or against his or her husband or wife, personal representatives, heirs or devisees in like manner and by such persons as is before prescribed for pending cases; and it may be read in any future trial that may be directed, if the same could properly be read, had there been no such judgment, decree or order.(Code 1849, c. 176, §33; Code 1860, c. 176, §34; Code 1868, c. 130, §38; 1882, c. 160, §38; Code 1923, c. 130, §38.)
§7. Perpetuating Testimony; Effect; Costs.—A person desirous of perpetuating the testimony of witnesses as to a matter, whether a suit be pending in relation thereto or not, may file with a commissioner in chancery of a court wherein, if there were a bill to perpetuate the testimony, such bill might be filed, a petition stating such matter, and what persons may be affected by the testimony. Whereupon the commissioner shall appoint for proceeding on the petition a time and place, whereof reasonable notice shall be given to the persons who may be so affected. If any of them be an infant or insane person, the commissioner shall appoint a guardian ad litem who shall attend on his behalf and who shall be a practicing attorney in this State. At such time and place the commissioner shall take in writing the evidence of any witness adduced in respect to said matter by the petitioner or by the person so affected. He may adjourn from time to time, and shall return a report of his proceedings, with the testimony taken by him, to the clerk’s office of the court by which he was appointed, and such testimony shall have the same effect as if it had been taken on a bill to perpetuate testimony. Such court may make such order as to the costs as may seem to it right.(Code 1849, c. 176, §34; Code 1860, c. 176, §35; Code 1868, c. 130, §39; 1882, c. 160, §39; Code 1923, c. 130, §39.)
Revisers’ Note.—The- phraseology of the third sentence is changed.
Article 5. Miscellaneous Provisions.
§1. Summons for Witnesses.—A summons may be issued, directed as prescribed in section five, article three, chapter fifty-six of this Code, commanding the officer to summon any person to attend on the day and at the place that such attendance is desired, to give evidence before a court, grand jury, arbitrators, umpire, justice, surveyor, notary public, or any commissioner appointed by a court. The summons may be issued, if the attendance be desired at a court, by the clerk thereof; if before a grand jury, by the prosecuting attorney or the clerk of the court, at the instance of the prosecuting attorney; and in other cases, by any person before whom, or the clerk of the circuit court of a county in which, the attendance is desired; or, if attendance be desired before a justice, by such or any other justice. The summons shall express on whose behalf, and in what case, or about what matter, the witness is to attend. This section shall be deemed to authorize a summons to compel attendance before commissioners or other persons appointed by authority of another state, but only in case they be citizens of this State, and the summons requires the attendance of a witness at a place not out of his county.(Code 1849, c. 176, §20; Code 1860, c. 176, §21; Code 1868, c. 130, §25; 1882, c. 160, §25; Code 1923, c. 130, §25.)
Revisers’ Note.—The only changes are formal.
§2. When Witness May be Compelled to Give Evidence Against Himself; Immunity.—In any criminal proceeding no person shall be excused from testifying or from producing documentary or other evidence upon the ground that such testimony or evidence may criminate or tend to criminate him, if the court in which he is examined is of the opinion that the ends of justice may be promoted by compelling such testimony or evidence. And if, but for this section, the person would have been excused from so testifying or from producing such evidence, then if the person is so compelled to testify or produce other evidence and if such testimony or evidence is self-criminating, such self-criminating testimony or evidence shall not be used or receivable in evidence against him in any proceeding against him thereafter taking place other than a prosecution for perjury in the giving of such evidence, and the person so compelled to testify or furnish evidence shall not be prosecuted for the offense in regard to which he is so compelled to testify or furnish evidence and he shall have complete legal immunity in regard thereto.(1882, c. 151, §18; Code 1923 c. 152, §18.)
Revisers’ Note.—This section is a modification of §18, c. 152, Code 1923, and covers similar provision in §90, c. 3; §§8a(7) and 8b(17), c. 5; §§6, 33, c. 32A; §15b, c. 34; §5a(5), c. 147, and §11, c. 148, Code 1923. The reasons for this modification are: (a) The provisions in the Code of 1923 compelling witness to give evidence against himself were so numerous and sometimes so indefinite (e. g., §18, c. 152, covered any “offense punishable under any of the provisions of chapters 32, 147 and 151”) that it was difficult to determine when a witness could be so compelled; (b) The reasons which apply to the specific crimes enumerated in the above mentioned sections apply equally to crimes in general. Mr. Wigmore says, “The resort to immunity statutes seems to have proved itself a valuable and satisfactory aid to the investigation and prosecution of crime. Their only shortcoming is their large number. * * * “(An) effective improvement would be to authorize the granting of immunity in all crimes without exceptions, by a single statutory section. This has already been done in Canada. Such a measure should leave to the judge’s discretion, in each instance, to determine whether the immunity should be granted.” Wig., Ev. (2d ed.) §2284. This section is modeled largely after the Canadian statute set out in 4 Wig., Ev. (2d ed.) p. 935. In all the states of the United States this subject is dealt with, as in West Virginia, by numerous statutory provisions. Hence Canada was taken as a model; (c) The most comprehensive of our statutory provisions, viz. §18 of c. 152, is unconstitutional. See Counselman v. Hitchcock, 142 U. S. 547, Cullen v. Com. 24 Gratt. 624. This section, in addition to extending our statutory provisions to all crimes, grants complete immunity in regard to compelled self-criminating evidence and is therefore constitutional.
§3. Production of Writings by Party; Effect of Failure to Produce Writings.—In any case at law, upon a party making affidavit that a particular book of accounts, or other writing or paper is important for him to have in the trial of his cause, he may procure from the clerk of the court in which the action is pending a subpeona duces tecum requiring any party to the or action to appear before the court on a day named therein, and bring with him and produce before of such court such book of accounts, or other writing or paper, as is specified in such process, in order that the same may be used as evidence on the trial of the action. And unless the person upon whom such process is served shall, at the or time specified therein, produce what is so required, or show to the satisfaction of the court that he has not under his control such book, writing or paper, or unless, from an inspection or otherwise, the court is of opinion that the character of the book, writing or paper is such as should not be used as evidence on the trial of the action, the court may attach him and compel him to produce the same. It may also, if it see fit, set aside a plea of such person and give judgment against him by default, if he be in a defendant, or, if he be a plaintiff, order his suit to be dismissed, with costs, or if he be claiming a debt before such court or commissioner, disallow such claim.(Code 1849, c. 176, §39; Code 1860, c. 176, §40; Code 1868, c. 130, §43; 1882, c. 160, §43; Code 1923, c. 130, §43.)
§4. Production of Writings by Others Than Parties.—When it appears by affidavit or otherwise that a writing or document in the possession of any person not a party to the matter in controversy is material and proper to be produced before the court, or any person appointed by it or acting under its process or authority, or any such person as is named in section one of this article, such court, judge or president thereof in vacation may order the clerk of the said court to issue a subpoena duces tecum to compel such production at a time and place to be specified in the order.(Code 1849, c. 176, §21; Code 1860, c. 176, §22; Code 1868, c. 130, §26; 1872-3, c. 81, §26; 1882, c. 160, §26; Code 1923, c. 130, §26.)
Revisers’ Note.—Formal changes are made.
§5. Witness Failing to Attend or Produce Writing; Fine; Attachment; Liability.—If any person, after being served with such summons, fail to attend to give evidence or to produce such writing or document according to the summons, the court whose clerk issued the summons, or if it was not issued by the clerk of a court, the circuit court of the county in which the attendance is desired, or a judge of such court in vacation, on a special report by the person or persons before whom there was a failure to attend, on proof that there was paid to him (if it was required) a reasonable time before he was required to attend, the allowance for one day’s attendance, and his mileage and tolls, shall, after service of a notice to, or rule upon him to show cause against it (if no sufficient cause be shown against it) fine him not exceeding twenty dollars, to the use of the party for whom he was summoned, and may proceed by attachment to compel him to attend and give his evidence or produce such writing or document at such time and place as such court or judge may deem fit. The witness shall, moreover, be liable to any party injured for damages.(Code 1849, c. 176, §22; Code 1860, c. 176, §23; Code 1868, c. 130, §27; 1882, c. 160, §27; Code 1923, c. 130, §27.)
Revisers’ Note.—After the word “evidence,” near the end of the first sentence, the words “or produce such writing or document” are added. After the word “as,” near the end of the first sentence, the words “such court or judge” are substituted for the word “it.”
§6. Witness Attending and Refusing to Testify or Produce Writing May be Committed.—If a person, after being served with such summons, shall attend and yet refuse to be sworn, or to give evidence, or to produce any writing or document required, he may by order of the court whose clerk issued said summons, or of the person before whom he was summoned to attend, be committed to jail, there to remain until he shall, in custody of the jailer, give such evidence or produce such writing or document.(Code 1849, c. 176, §23; Code 1860, c. 176, §24; Code 1868, c. 130, §28; 1882, c. 160, §28; Code 1923, c. 130, §28.)
§7. How Sworn.—Interpreters may be sworn truly to interpret, when necessary.(Code 1849, c. 176, §25; Code 1860, c. 176, §26; Code 1868, c. 130, §30; 1882, c. 160, §30; Code 1923, c. 130, §30.)
§8. Oaths to Witnesses.—Any person before whom a witness is to be examined may administer an oath to such witness.(Code 1849, c. 176, §24; Code 1860, c. 176, §25; Code 1868, c. 130, §29; 1882, c. 160, §29; Code 1923, c. 130, §29.)
§9. Who May Administer an Oath or Take an Affidavit; How Affidavit Made in Another State Authenticated.—Any judge of this State may administer any oath that is or may be lawful for any person to take, including oaths of office, and also may swear any person to an affidavit, and administer an oath to any person in any proceeding.
Any oath or affidavit required by law, which is not of such a nature that it must be made otherwise or elsewhere may, unless otherwise provided, be administered by, or made before, a county commissioner, notary public, or a commissioner appointed by the governor, or by the clerk of any court, or, in case of a survey directed by a court in a case therein pending, by or before the surveyor directed to execute said order of survey.
An affidavit may also be made before any officer of another state or country authorized by its laws to administer an oath, and shall be deemed duly authenticated if it be subscribed by such officer, with his official seal annexed, and if he have none, the genuineness of his signature, and his authority to administer an oath, shall be authenticated by some officer of the same state or country under his official seal.(Code 1849, c. 176, §26; Code 1860, c. 176. §27; Code 1868, c. 130, §31; 1877, c. 81, §1; 1882, c. 160, §31; 1917, c. 48, §31; Code 1923, c. 130, §§31, 31a.)
Revisers’ Note.—This section is a consolidation and rearrangement of §§31 and 31a, c. 130, Code 1923. After the word “State,” in the first sentence, the following words are omitted: “Whether a judge of a circuit court or of the supreme court of appeals.”
§10. Affidavit of Nonresidence; Publication in Newspaper.—In any suit an affidavit that the witness or party resides out of this State, or is out of it, shall be prima facie evidence of the fact although such affidavit be made without previous notice. Where anything is required by any statute to be published in a newspaper, the certificate of the editor or publisher or affidavit of any other person shall be admitted as evidence of what is stated therein as to the publication.(Code 1849, c. 176, §27; Code 1860, c. 176, §28; Code 1868, c. 130, §32; 1882, c. 160, §32; Code 1923, c. 130, §32.)