Epitomized Opinion
James Morton, being charged with robbery, was indicted by the grand jury. His attorneys made application under sec. 13668 GC. to take deposition of witnesses outside of the state of Ohio, his attorneys assuming that the Sec. 13668 was unconstitutional. The court overruled the application, holding that Sec. 13668 as found in 103 O. L. 443 had been repealed by the substituted Sec. 13668, as found in 107 O. L. 451. This application was overruled by the court. His attorneys then made an application under the section as amended 451, which law provided that deposition could be taken outside the state, when the defendant was not confined in prison. The former section provided that the court should grant a commission to take such deposition and the amended section was the same, except there had been inserted therein “unless the defendant is confined in prison.”
Court of appeals affirmed the court of common pleas and the supreme court in reversing held:
1. That the section, as shown in 107 O. L. 452, denied the equal protection and benefit, because it gave the benefit to a defendant, or prisoner who was able to furnish bond and be at large, pending preparation of the case, to have such deposition taken, and denied the less fortunate prisoner who could not furnish bond, and was confined in jail, the right to have such deposition taken, hence is in violation. Art. 1, Sec. 2, of Ohio Constitution, and Sec. 1 of the 14th Amend, of U. S. Constitution.
2. Where a repealing clause neither carries an expressed intention to repeal the prior law, and such intention does not clearly appear from the substitute section, it is, by reason of the unconstitutionality of the substituted section, inoperative, approving 91 O S.l, and 89 OS. 351.