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 take his testimony.”

It is contended, on the part of the people, that as the court below must be satisfied by the showing, the matter of ordering the issuance of a commission rests in its discretion, and that no abuse of discretion appears in this case.

But if we concede that the matter rested in the discretion of the court below, it affirmatively appears from the record that no such discretion was exercised. The order was refused on the sole ground that the court had no jurisdiction to make the order. If the court had not been of this opinion, the order would probably have been made. That it should have been made we have no doubt.

The evidence sought to be elicited was material and important to the defense interposed by the defendant. The showing made contained all that the statute requires, and the reason for not having procured the order and the evidence before was sufficient. The informal depositions of these witnesses having been used on a *27 former trial with the consent of the district attorney, the defendant had the right to rely upon the fact that they would be allowed to go in evidence at the second trial, until he was notified to the contrary. The record shows that he offered them in evidence, but they were objected to and excluded. By these rulings he was deprived of competent and material evidence, which might have changed the result. He had been once tried, and with this evidence in, the jury failed to convict, and without it, a second jury found him guilty of a lesser offense than the one with which he was charged; which tends to show the materiality and probable effect of the testimony of which he was deprived. For this ruling the cause must be reversed.

Certain of the instructions given by the court are objected to, but they are not set out in a bill of exceptions or authenticated in any way, and for that reason cannot be considered.

Judgment and order reversed.

Fox, J., Sharpstein, J., and Thornton, J., concurred.

Rehearing denied.