The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-03-29
CAN'T TAKE THE DEPOSITION.

New Points OF Law a Decision by Judge
Brown, of the Circuit Court.
judge Brown yesterday handed down his
opinion upon the petition of stephen A.
Tullis and Mrs William Shorrridge. asking
an order of the Circuit Court for the TAX
ing or the deposition of Dr.. Charles A.
Stafford, of this city. to be used in the trial
of the petitioners for the murder of Mrs.
Shortridge's husband. at New Castle. The
petitioners filed in the Rush county Circuit
Court their consent to the States taking of
the deposition of any witness residing out
of the State. and the deposition of any wit
ness cOndittonally. They served notice
upon the prosecuting attorney or Rush
county that they would the
23d day Of March take the deposition OF
Stafford conditionally. and notified him Of
the place where it was proposed to take the
deposition. Stafford appeared In answer
to the subpoena but refused to be sworn or
testify. and the facts were certified to the
Circuit Court ana an order prayed citing
Stafford TO appear and show cause why he
refused to testify, and asked that upon hnRl
hearing the court order Stafford to give his
deposition. Staffords defense was that he
was q witness in the case for the State. and
was in good health, and expected to attend
the trial IN person He ALLEGED that the de-
PENDANTS did not desire 10 read his deposit
tion upon the trial of the case, but the ap-
pIostion was merely a ruse employed by
them TO ascertain what his testimony
would be upon the trial.
Judge Brown, in his opinion, says:
In q proper proceeding duly authorized By
law, the court will grant such an order as Is
be allowed 10 judge to thu competency OF his
testimony or refuse to testify because he is u
witness for the other side. Ii ~ party to ac-
ton. civil or criminal. desires IN good faith
get fact known by any person before the court
or jury trying his cause. and brings himself
modus operandi of getting the fact before the
jury is concerned. no witness can, in my judy
ment, refuse To testify for any reason except
that by so doing he might criminate himself.
Dispositions In criminal cases can only be taken
under the statute. and in submission to the con-
stitutional guarantees as TO personal examina-
tiOn OF witnesses The defendant may, by leave
OF court, take the dispositions of witnesses
siding out of the State, to be read the trial;
but, before leave is given, the defendant must
enter OF record his consent that the dispositions
of Witnesses residing out of tho State may be
taken and read on behalf OF the State relative to
the same matter. and the defendant may. on the
same terms. by leave of court by notice
the prosecuting attorney, take the deposition OF
any witness conditionally.
The Issue between the parties was as to
whether the defendants had brought them.
selves within the terms of the statnte.
This depended upon the construction TO be
placed upon the word "condltionally" in
the statute. The court reviewed tho his
tory of the taking of testimony de beno
esse." which In the law technique means
conditionally. The code provides an equiv
alent for the old form called bill to take
testimony de bene esse." and in the new
practice provided by the code the word
''conditIonslly" was used. Before the code
it was permissl BILE TO take testimony
OF witnesses when it was certain or
probable that personal attendance OF q
witness could not be procured at n trial. an
examination de bene esse' was encour-
aged by the court. To come within the
rule. however. the bill must show that the
witness was aged. intirm or i'll; that he was
the only witness. or that the witness was
about 30 leave the Jurisdiction. In the last
instance it Is held that the bill will not lie,
II it Is IN the power of she complainant TO
detain him until after the trial. In con.
struing the statute the court SAYS:
take it then that the word ''conditionalIy" as
used In the statute concerning the taking of
dispositions, means exactly what the term ssie
pene esse meant prior TO the code, and that TO
entitle party to take the testimony OF a wit
ness conditionaliy, 1t must be done on the order
OF the court in which the case is pending and i'm
the cause and upon the showing which sntisfes
the court that he would be entitled. under the
old practice, 10 bill "de bene esse." The
statute cannot he construed. In my Judgment 40
as To allow party to take the deposition of any
witness he may choose and read IL In evidence.
couditi0nally, upon sho wing that the witness ia
not in court at the trial. The point "a made
for the petitioners that the witness cannot
mine whether the court will allow the deposition
10 be read on the trial. He must submit to an
examination. and the court vii. determine as to
these questions That Is true IN q civii case and
IN criminal cases where the party has broughr
himself within the statute. In such the
Ing, order him 10 give his deposition or commit
hin Tor contempt, and the question of compe-