State ex rel. Jackman v. Court of Common Pleas of Cuyahoga County

• Citation: 217 N.E.2d 251,6 Ohio App.2d 182
• Parties: , 35 O.O.2d 346 The STATE ex rel. JACKMAN et al., v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY et al.
• Decision Date: 02 June 1966
• Court: United States Court of Appeals (Ohio)

Page 182

6 Ohio App.2d 182

217 N.E.2d 251, 35 O.O.2d 346

The STATE ex rel. JACKMAN et al., v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY et al.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 2, 1966.

John T. Corrigan, Pros. Atty., for relators.

Bernard A. Berkman, Fred H. Mandel and James R. Willis, Cleveland, for respondents.

SKEEL, Judge.

This is an action originating in this court, seeking a writ of prohibition against the Court of Common Pleas of Cuyahoga County to prohibit that court from granting and carrying into execution an application to appoint a commission to take the depositions of certain 'state witnesses' as, in part, provided by Section 2945.50 et seq., Revised Code.

The petition alleges that Clarence Jackman and Alan Schultz (relators herein) are police officers assigned to the homicide unit of the detective bureau of the Police Department of the city of Cleveland, and that Daniel Miska, Gregory Argood and David Aldridge are now being held as material witnesses in the cases of State v. David Ferelli and Norman T. Kosky, each of whom has been indicted on two counts of murder in the first degree, which cases are now pending in the Court of Common Pleas of Cuyahoga County.

It is further alleged that defendant David Ferelli had made application to take the depositions of relators and other witnesses under the authority of Section 2945.50, Revised Code, as amended effective October 13, 1965 (in 131 Ohio Laws H 153), which provides:

'At any time after an issue of fact is joined upon an indictment, information, or an affidavit, the prosecution or the defendant may apply in writing to the court in which such indictment * * * is pending for a commission to take the depositions of any witness. The court or a judge thereof may grant such commission and make an order stating in what manner and for what length of time notice shall be given to the prosecution or to the defendant, before such witness shall be examined.'

It is alleged that on December 22, 1965, a hearing was had upon such application wherein the prosecuting attorney appeared and stated that the application for a commission to take depositions did not allege that the witnesses sought to be deposed could not attend or 'be had' at the trial and that, therefore, there was no constitutional authority vesting the respondents with the power to grant an application to take depositions under the allegations of the application.

It is also alleged that the court, on December 28, 1965, announced its intention to grant the application and that, unless it is prohibited from doing so by this court, the granting of such application will be journalized, whereby the court will exercise jurisdiction in excess of that invested upon it by law. The relators' prayer seeks an order prohibiting respondents from granting such application to take the depositions of the relators and other witnesses of the state whose attendance it is admitted can be had at the trial.

The question presented on the demurrer is whether the petition of the relators seeking a writ of prohibition against the respondents proceeding with and granting the application to take the depositions of the relators and others, which the respondents admit to be a pre-trial discovery proceeding which does not claim or assert the fact that said witnesses could not be had at the trial, states a cause of action.

The right to present evidence by deposition in a trial court is not a right recognized or permitted at common law. Such right, if it can be exercised, must be provided by statute enacted under constitutional authority or, where the Constitution does not deal with the question, then upon a power authorized by statute. Section 7293, Revised Statutes (70 Ohio Laws 145, Section 144), which succeeded an earlier statute on this subject (there being at that time no provision in the Constitution authorizing the taking of depositions in criminal cases), provided:

'When an issue of fact is joined upon an indictment, and a material witness for the defendant resides out of the state, or, if he resides within the state and is sick or infirm, or is about to leave the state, or is confined in any prison of the state, the defendant may apply, in writing, to the court, or the judge thereof in vacation, for a commission to examine such witness upon interrogatories thereto annexed; and such court or judge may grant the same, and make an order stating in what manner, and for what length of time, notice shall be given to the prosecuting attorney before such witness shall be examined.'

The next basic change of the statute dealing with this subject, following the amendment in 1912 of Section 10, Article I of the Constitution of the state of Ohio (Which was amended by adding the phrase: 'but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court.'), was the amendment (in 1913) of what is now Section 2945.50, Revised Code, hereafter considered. The constitutional amendment was considered and passed, as is shown by the minutes of the constitutional convention, to give the...