169 S.W.2d 761 | Ky. Ct. App. | 1943
Affirming.
Robert H. Anderson, convicted of murder in the Payette Circuit Court, Anderson v. Commonwealth,
Responsive pleas of the defendants were overruled; the depositions were ordered taken and subsequently perpetuated in accordance with the prayers of the petition. The defendants were present at the taking of the depositions and the witnesses were fully cross examined. The defendants have prayed an appeal from the orders of the court.
As shown in a companion opinion under the same style, Anderson v. Buchanan,
For ready reference, we quote Sec. 610, Civil Code of Practice:
"A person who resides in this State and expects to be a party to an action in a court hereof; or who, being a non-resident of this State, has an interest in real property herein, concerning which he expects to be a party to an action in a court hereof; and who desires to perpetuate the testimony of witnesses, may file, in the circuit court of the county in which he resides, or in which the property is situated, a petition in equity, verified by his affidavit, stating —
"1. That he expects to be a party to an action in a court of this State, and the nature of the expected controversy.
"2. The name, age and place of residence of the expected adverse party, if known by the petitioner; or his ignorance thereof, if not known by him.
"3. That the evidence of witnesses — whose names and the facts, generally, expected to be proved, shall be stated — is believed by the petitioner to be material to him.
"4. The obstacles preventing the commencement *389 of the action or proceeding, if he expects to commence the same."
The present proceeding seems to be a novel use of those provisions. But the proceeding to obtain the benefit of a writ of coram nobis is a civil action, although partaking of a criminal nature in that its purpose is to have a new trial of a criminal prosecution. Jones v. Commonwealth,
Judgment affirmed.
Whole Court sitting.