Lundquist

The defendant was tried for murder, convicted of murder in the second degree, and sentenced to imprisonment in the state’s prison for the term of thirty-four years. It appears, from the record, that the defendant, some time before the case was set down for trial, applied to the court below for a commission to take the depositions of witnesses out of the state; and in support of his application filed the following affidavits:—

It further appears, from the bill of exceptions, that the court refused to grant the order for such commission, “on the ground that the court had no jurisdiction to make such order.”

We think the court erred in this ruling. Jurisdiction to make the order asked for is expressly given by the Penal Code. (Secs. 1349-1354.) The only question is, therefore, whether the showing made was sufficient to entitle the defendant to an order for a commission to take the depositions of these witnesses. Section 1354 of the Penal Code provides that “if the court to whom the application is made is satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to…