Seamster v. State , 74 Ark. 579 ( 1905 )

McCuleoch, J.,

(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.