UNITED STATES V. WILDER,

893

UNITED STATES

v.

WILDER,-

(Oircuit Oourt, S. D. Georgia. November, 1882.)
CRIMINAl, PRACTICE-REV. ST.

+866. A commission will be allowed to the defendant in a criminal caBe to take depositions of witnesses residing abroad, under section 866 ofthe Revised Statutes. Whether such depositions can be admitted in evidence upon the trial of the case, is a queRtion that'does not need to be decided until then; and if they be not allowed to go before the jury, in case of conviction will certainly be considered by the judge who Rhall be called upon to exercise the large discretion gi-ven by the statute in imposing sentence.

Information for: SmugRling. S. A. Dctrnell. Dist. Atty., for plaintiff. Henry R. Jackson, for defendant. P AnDEE, C. J. The defendant, who ,is charged by the United States attorney with smuggling, submits a petition and affidavit that he has witnesses beyond the United States who are material, to his defense, and he asks a dedimus potestatem to take the depositions of apsaid witnesses under section 866 of the Revised Statutes. plication is resisted by the district attorney on the grounds that it is unprecedented, and without authority, to take the evidence 6£ wit!Jesses in criminal cases by commission, and that the evidence, if taken, would be inadmissible on th.e trial. It is so abhorrent to all ideas of justice that a person cha.rged with crime shall not have full opportunity to make his defense by witnesses, that although I am not prepared to hold that evi'dence taken as proposed in this case will be admitted on the trial, I am of the opinion that the "ommission and opport.unity prayed for ought to be granted. Takinj:{ evidence in the manner asked in this case may be and probably is unprecedented in the United States courts in criminal cases, but I am informed is permitted in state courts of Georgia, and is allowed by statute in other states. At all events, the government cannot be seriously prejudiced by allowing this commission, as it will, of course, be at the expense of the defendant, and its admissibility will be determined on the trial. When the evidence is taken and the case comes on for trial, its scope, force, and effect can be seen, and its admissibility to go before the jury determined and if the defendant shall be deprived of his testimony before the jury because the law will not allow its consideration,' and the defendant shall be con""Heported by Joseph P. Hornor, Esq., of the New Orleans bar.

894

.1I'EDEBAL

vieted, the testimony will certainly be considered by the judge who shall be called upon to exercise the large discretion given by the statute in imposing sentence in the case. Let the commission issue as prayed for; the district attorney to be served with the interrogatories to be propounded to witnesses, and to have three days tl;J.ereafter to file cross-interrogatories, and the commission to be returned 10 days before the uext term of this court.

MOLLANDIN

v.

UNION PAC.

By. Co.-

(C'ircuie Ooure, D. Oolorado. October Term, 1882.) 1.
EMINENT DOMAIN-USE OF STREET IN A CITY FOR RAILROAD PURPOSES· RIGHTS OF, OWNERS OF ABUTTING LoTS.

Unde'rsectlon 15, 2, of constitution of the state of Colorado, the owners of lots abutting on a street in a city are entitled to compensation for the use of the street for railroad purposes. '
2. SAME.

Whether the title to the street is in the owners of lots or in the city, the rule is the same. Rigney v. City of Chicago, 102 III 64, followed.

S. E. Browne, for plaintiff. Teller, for defendant. Plaintiff set up title to lots 1 to 7, inclusive, in block 1, in Hoyt & Robinson's addition to the city of Denver, fronting, 216 feet on Wewattastreet, on which he had erected a hotel and several dwellinghouses. After thebuildings'were erected, and in September, 1881, defendant laid a railroad track through Wewatta street in front of plaintiff's property, about 18! feet from the sidewalk. The track is above the level of the street, and in itself a considerable obstruction to loaded wagons, and light wagons could not pass over it easily in front of plaintiff's property. But the orossingson either side at Nineteenth and Twentieth streets are convenient for· all vehicles. Two other tracks were laid in Wewatta street, on the opposite side from the plaintiff's property, by other companies which were not parties· to this action. Plaintiff alleged that by the track laid by defendant, and the use made of it, his "facilities for ingress to and from his said hotel and dwelling.housesand lots has been greatly interrupted and cut off, and- his said· hotel and dwelling-houses have been exposed to dam!lige by ure, and the rental value of his property
""From the Colorado Law Reporter.