Ford v. State , 1 Ohio Law. Abs. 437 ( 1923 )

CHITTENDEN, J.

Epitomized Opinion

The accused' was indicted for shooting with intent ;o kill. Prior to trial, two applications were made :>y the accused to take depositions. One of these ipplications sought to secure the testimony of one Ballard, who was said to be in the county of Marion, Jhio. Defendant swore that he expected to show jy this testimony that his physical condition at the ;ime that he was arrested was caused through an ittack upon him by the person he was alleged to lave shot with intent to kill. The other application sought to secure the testimony of several witnesses n Florida for the purpose of showing his reputation. These applications were refused. At the trial the iccused was convicted and he thereupon prosecuted srror, alleging as his principal ground the refusal if the court to permit the taking of these depositions, [n sustaining the judgment of Judge Garver of Fremont, Ohio, the court held:

1. The granting of a commission to take deposi-;ions is purely a matter of judicial discretion and a refusal to grant the same will not be held to be prejudicial where it does not appear that the deposi-;ions were necessary to establish a complete defense :o the action.

2. Ordinarily evidence as to character, to be of much weight, should relate to the reputation of :he person whose character is questioned at the place and at about the time of the occurrence under judicial examination; and where it does not appear :rom the affidavit in support of the application to :ake a deposition that the party was without means >f making proof of his reputation in the community .vhere he had been residing and where the crime is illeged to have been committed, it is not prejudicial irror to refuse to grant such a commission.