Boggs v. State

8 Ind. 463

• Court: Indiana Supreme Court
• Decided: January 14, 1857
• Status: Published

Opinion

Perkins, J.

Prosecution against Boggs for cutting and taking timber from the land of one John Conner without license.

Plea, not guilty. Trial by jury; conviction and fine.

The State took the deposition of said John Conner, then residing at Nashville, Tennessee. The notice was served in Warren county, fourteen days before the deposition was to be taken. It specified that the deposition would be taken before H. W. Haworth, a notary public, at his office in Nashville, Tennessee, or by some other person competent to take it. No commission was issued by the clerk to said Haworth, authorizing him to take the deposition. The deposition was taken in the ab-sense of the defendant. The officer certified that the deponent was sworn “ according to law, to tell the truth, the whole truth,” &e.

It is objected, in this Court, that the State could not take a deposition under the statute, without the consent of the defendant, &c.; but.this objection was not made below, and, hence, cannot be urged here, in this case.

P. A. Chandler, for the appellant. P. C. Gregory, for the appellee.

It was objected below to the deposition, on a motion to suppress, that no commission was issued; that the notice was not long enough, being but fourteen days; that the deposition was taken at the office of a commissioner, in-instead of a notary, as specified in the notice; that it is not certified that the deponent was properly sworn, &c.; but the deposition was admitted, and exception taken. The same objections are urged in this Court.

One of them disposes of the deposition. We think a commission should have been issued by the clerk of the Court pursuant to section 260, 2 R. S. p. 87.

No other objection need be examined.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.