If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

If the witness is summoned to attend and testify in this state he shall be tendered the sum of five cents [($.05)] a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and two dollars [($2.00)] for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state. Expenses as herein provided shall be paid from the fund from which all other witnesses are usually paid.

History: Laws 1937, ch. 66, § 3; 1941 Comp., § 42-1215; 1953 Comp., § 41-12-15.

Preliminary hearing testimony may be used after diligent attempt to obtain witness. — Trial court did not abuse its discretion in admitting preliminary hearing testimony of absent state witness based on unavailability after prosecutor had exercised due diligence in obtaining the witness, even though prosecutor did not use a subpoena pursuant to this article to secure attendance of the witness from out of state until the witness had already become a fugitive, where the witness had made three previous voluntary appearances. State v. Martinez, 1984-NMCA-106, 102 N.M. 94, 691 P.2d 887, cert. denied, 102 N.M. 88, 691 P.2d 881.

Party summoning witness must act diligently. — Where no action was taken to require presence of out-of-state witness until some ten days before trial, no subpoena was issued for the witness and his presence at some future time appeared extremely doubtful, defendant had failed to show that diligence which the discretion of the court would be entitled to require. State v. Fernandez, 1952-NMSC-087, 56 N.M. 689, 248 P.2d 679.

In seeking a continuance to secure the appearance of an absent witness, a party must show that it has used due diligence to obtain the witness' testimony. State v. Hall, 1987-NMCA-145, 107 N.M. 17, 751 P.2d 701, cert. denied, 107 N.M. 16, 751 P.2d 700.

Compliance with section deemed due diligence. — If the state wanted to guarantee the witness' attendance once it had located him in Kentucky but was unable to contact him directly, it should have used the procedures outlined in this section. These steps would not have guaranteed the witness' attendance at the trial; however, on the day trial was to commence, if the state had been able to show that it had used this section, it could have made a stronger argument to the court to grant a continuance based on its due diligence and good faith efforts. Because the state could rely only on efforts that had no legal effect and did not constitute due diligence, resulting in its crucial witness being absent, the court did not err in denying the state's motion for continuance and in dismissing the action. State v. Graham, 1993-NMCA-054, 115 N.M. 745, 858 P.2d 412.

Due diligence found. — Where the court admitted the preliminary hearing testimony of a state witness at defendant's murder trial on that ground that the witness was unavailable; the New Mexico prosecution served the witness with a subpoena through the witness' Oklahoma parole officer; the witness had twice responded to similar subpoenas; the New Mexico prosecution purchased an airplane ticket to New Mexico and mailed the ticket to the witness; the New Mexico prosecution telephoned the witness twice and the witness confirmed that the witness would appear at defendant's trial; unknown to the New Mexico prosecution, the witness' criminal trial began in Oklahoma on the day the witness was scheduled to appear at defendant's trial; and when the New Mexico prosecution learned that the witness had disappeared during the witness' trial in Oklahoma, the New Mexico prosecution obtained a subpoena pursuant to Section 31-8-3 NMSA 1978 and sent the subpoena to Oklahoma, the New Mexico prosecution acted with due diligence in seeking to bring the witness to New Mexico and the trial court's admission of the witness' preliminary testimony did not violate defendant's sixth amendment rights. Martinez v. Sullivan, 881 F.2d 921 (10th Cir. 1989).

Inability of witness to attend trial. — Where what out-of-state witness would testify to was pure speculation but witness was offered money for transportation and expenses, his inability to attend on day of trial did not make denial of defendant's motion for continuance until such time as witness could be produced erroneous, since required statement of facts it was believed witness would prove, as is necessary to support motion for continuance made on first day of trial, was not produced. State v. Fernandez, 1952-NMSC-087, 56 N.M. 689, 248 P.2d 679.

Refusal of appellate court to hold witness unavailable. — The district attorney's statements that the state attempted to subpoena a material witness and that he was out-of-state were no more than bare recitals unsupported by factual elaboration. Since the record contained no evidence as to the circumstances of the state's alleged attempt and inability to subpoena the witness, the court of appeals refused to hold that the witness was unavailable for trial, and under Rule 11-804 NMRA his preliminary hearing testimony was not admissible in evidence. State v. Mann, 1975-NMCA-045, 87 N.M. 427, 535 P.2d 70.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 81 Am. Jur. 2d Witnesses §§ 34, 35, 39, 68 to 74.

Right of witness detained in custody for future appearance to fees for such detention, 50 A.L.R.2d 1439.

Allowance of mileage or witness fees with respect to witnesses who were not called to testify or not permitted to do so when called, 22 A.L.R.3d 675.

Sufficiency of evidence to support or require finding that out-of-state witness in criminal case is "material witness" justifying certificate to secure attendance under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 12 A.L.R.4th 742.

97 C.J.S. Witnesses §§ 2 to 48.