
    No. 787
    MORTON v. STATE
    Ohio Appeals, Eighth District, Cuyahoga County
    No. 4734.
    Decided Oct. 1, 1923
    172. EVIDENCE.
    Depositions — Not prejudicial error to refuse to allow accused to attend deposition taken on his behalf outside state under 13668-3 GC — Epecially when counsel for accused was present and helped take the deposition, and it was used in the trial to establish the defense.
    Attorneys — G. W. Spooner, for Morton; E. C. Stanton, for State.
   SULLIVAN, J.

Epitomized Opinion.

Morton was convicted the second time of robbing the West Cleveland Bank of $62,000. Supreme Court reversed the first judgment of conviction for error in refusing to allow Morton to take depositions outside of Cuyahoga county and to be present thereat under Sec. 13668-1 and 2 GC. Morton assigns as error in the second judgment the refusal of the court to permit him under the provision of Sec. 13668-3 GC. to be present at Marquette, Mich., in the taking of depositions in his behalf. These depositions tended to prove the defense of alibi and photograph of Morton was used in the taking of the depositions. The admission in evidence of certain le’teis which wiere copies of letters alleged to have been written by Morton and bearing direcently upon the question of flight, is also assigned as error. In affirming the judgment the Court of Appeal» held:

1. “If counsel for plaintiff in error had refused to proceed without the presence of the plaintiff in error at the time and place of the taking of the depositions when the Common Pleas Court refused to permit the attendance of the plaintiff in error and had then and there rested upon his rights under the statute, it might be said that by reason of the action of the lower court, prejudicial error was committed, but plaintiff in error’s counsel, instead of standing on the legal rights which he asserted for and on behalf of his client, went forward and took the depositions which, in charactei-, were of such advantage and benefit to the plaintiff in error that they were used in the trial of the cause to establish his defense of alibi. It therefore cannot be said that substantial justice has not be.m .done.”

2. It was not error to admit in evidence the copies of the alleged letters, the originals of which were proved to have been lost in the mails, the handwriting of the letters having been identified as that of Morton.  