74 Ark. 579 | Ark. | 1905
Lead Opinion
(after stating the facts.) The learned circuit judge erred in excluding the deposition of the witness, and it is obvious that appellant was prejudiced thereby. The stipulation signed by the prosecuting attorney waived all infor-malities and irregularities in taking the deposition, and the only variance from the- strict terms of the stipulation was that it purported to have been taken before a justice of the peace, instead of a notary public. The deposition' had been on file with the papers in the case for six days before the trial, and .it was too late, after the commencement of the trial, to insist upon this defect by reason of noncompliance, strictly,' with the terms of the stipulation. The term of office of the prosecuting attorney who signed the stipulation had expired when the case was tried, and it appears that his successor was not informed that the deposition had been taken until it was offered in evidence; but the deposition was on file, and, no objection thereto being made, the defendant had the right, without notifying that officer, to assume that its introduction in evidence would meet with no objection. It is unnecessary to decide whether the statute regulating the time and method of making exceptions to depositions (Kirby’s Dig. § 3190, et seq.) applies to depositions in criminal cases. In the absence of any statutory regulation on the subject, the court, in the interest of justice and to prevent surprise, should refuse to entertain objections to testimony not made in apt time.
The judgment is reversed, and the cause remanded for a new trial.
Dissenting Opinion
(dissenting.) Sections 2268-2271, Kirby’s Digest, provide when and how defendants may have the privilege of taking depositions in criminal cases. . They do not prescribe such taking upon notice or finder agreement with the prosecuting attorney; but, conceding that depositions taken in such notice or under such agreement are within the spirit of the statute, certainly the defendant must bring his deposition within the agreement, to make it availing. In this case the prosecuting attorney made an extremely liberal agreement, and about the only thing he stipulated for at all was that the deposition must be taken by a notary public, and this one was taken by some one, somewhere, who signed himself a justice of the peace. Presumably, it was taken in Arizona, as the witness said he lived there. A few days before the trial this was filed in the .clerk’s office, and the prosecuting attorney who had come into office since the agreement was made only discovered the deposition and its condition when it was read during the trial, and he promptly objected to its use. The provisions of the Civil Code requiring exceptions to be made to depositions before the commencement of the trial (Kirby’s Digest, § § 3189-3191) do not extend to depositions in criminal cases, and hence the prosecuting attorney’s objection was in apt time. The deposition is wholly without authentication of any kind, and contrary to the agreement under which it was to have been taken, and the court did right in taking it from the jury.'