State v. Zarlenga

• Decision Date: 14 February 1908
• Citation: 94 P. 55,14 Idaho 305
• Parties: STATE, Appellant, v. RAFFAELE ZARLENGA, Defendant
• Court: Idaho Supreme Court

94 P. 55

14 Idaho 305

STATE, Appellant, v. RAFFAELE ZARLENGA, Defendant

Supreme Court of Idaho

February 14, 1908

DEPOSITIONS-CONDITIONALLY TAKEN-WHEN ADMITTED IN EVIDENCE-SHOWING TO BE MADE.

1. Depositions taken in pursuance of sec. 7588, Rev. Stat., are admissible in evidence.

2. Before a deposition, taken as provided in sec. 7588, Rev Stat., is admitted in evidence, the prosecution must show all the preliminary steps necessary to be taken up to the time of taking such deposition.

3. The facts necessary to be shown are as follows: First, that the deposition was taken before the magistrate who conducted the preliminary examination, or the judge of the court to which such party had been held for trial. Second, that it was shown to such magistrate or judge, upon oath, that there was reason to believe that such witness whose deposition was sought would not appear and testify unless security was given. Third, that the magistrate or judge made an order requiring such witness to enter into a written undertaking, with sureties, under the provisions of sec. 7585, Rev. Stat.

4. When it satisfactorily appears to the magistrate or judge, by examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people under the provisions of sec. 7588, Rev. Stat.

5. It must also appear that the defendant has been advised of his right to counsel, and to be represented by such, and that the defendant was present in person and by counsel if he desired so to be, or had notice of such examination if on bail.

6. It must also appear that the examination was conducted in the same manner as an examination before a committing magistrate and certified in the same way.

7. Before such deposition is offered in evidence, the state must prove that the witness whose deposition is offered is unable to attend by reason of his death, insanity, sickness, or infirmity, or his absence from the state, and that due diligence has been exercised in the effort to procure the presence of said witness.

8. Where such facts have not been proved at the time the deposition of the witness is offered, it is not error on the part of the court to refuse to admit such deposition in evidence.

(Syllabus by the court.)

APPEAL from the District Court of Fourth Judicial District for Twin Falls County. Hon. Edward A. Walters, Judge.

Prosecution for murder. Refusal of the trial court to admit in evidence a deposition conditionally taken and offered by the state. Appeal from said order. Order affirmed.

Affirmed.

J. J Guheen, Attorney General, and F. A. Hutto, Prosecuting Attorney, for Appellant.

Diligence, in this case, was sufficient. (Garner v. Cutler, 28 Tex. 175; Stoddard v. Hill, 38 S.C. 385, 17 S.E. 138; People v. Riley, 75 Cal. 98, 16 P. 544; Renton v. Monnier, 77 Cal. 449, 19 P. 820; Kelly v. Benedict, 5 Rob. (La) 138, 39 Am. Dec. 530; Percival v. Groff, 8 Blackf. (Ind.) 233; Roberts v. Carter, 28 Barb. (N. Y.) 462; Wright v. Reed, 37 Tex. 265; Jenkins v. Richardson, 29 Ky. (6 J. J. Marsh.) 441, 22 Am. Dec. 82; Rankin v. Cooper, 2 Browne, 13; Tompkins v. Wiley, 6 Rand. (Va.) 242.)

This court has passed upon this kind of evidence often, and has clearly determined that this deposition should have been admitted. (Territory v. Evans, 2 Idaho 651, 23 P. 232, 7 L. R. A. 646; State v. Potter, 6 Idaho 584, 57 P. 431; State v. White, 7 Idaho 150, 61 P. 517; State v. Ireland, 9 Idaho 686, 75 P. 257.)

Our statute is taken from California, and in People v. Mitchell, 64 Cal. 85, 27 P. 862, while the deposition was rejected, in prescribing the requisites for admission, the court clearly makes such a deposition admissible.

No appearance for respondent, and no brief filed.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

An information was filed against the defendant charging him with the crime of murder in the killing of one Joseph D'Ipolito. Trial was had in the county of Twin Falls. The defendant was acquitted. During the trial the prosecuting attorney offered in evidence the deposition of one Joe Pedri. It was contended that this deposition was taken under the provisions of sec. 7588, Rev. Stat. To the introduction of this deposition, counsel for defendant made numerous objections in effect as follows: That no foundation had been laid for the introduction of this deposition; that it did not appear that the deposition was signed or sworn to under the direction or in the presence of the magistrate; that it did not appear that the witness was intending to depart from the jurisdiction of the court; that it did not appear from the deposition that the defendant had been advised of his rights and appeared with his counsel; that diligence had not been shown; that at the time the deposition was taken the cause was pending in the district court, and had passed beyond the jurisdiction of the probate court. The objections were sustained by the court, and the deposition was rejected as evidence. The state appeals to this court from the ruling of the district court in refusing to admit in evidence said deposition. This appeal is taken under sec 8043, Rev. Stat., as amended by the Laws of 1907,...