People v. Lundquist

Works, J. 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:—

“John Flournoy, being duly sworn, says: I am an attorney at law. I was, on the seventh day of August, 1888, appointed by Hon. D. J. Toohy, judge of said court, to defend the above Carl Albert Lundquist. Carl Albert Lundquist, the defendant, is now confined in the county jail of said county, awaiting his second trial on a charge of murder. The said defendant was first tried in this court upon this charge on and from the fourteenth day of May, 1888, to the twenty-third day of May, 1888. At the first trial of defendant the jury disagreed. J. N. E. Wilson, an attorney at law, was counsel for defendant at his first trial, but has now withdrawn from this case. The defense in this case is insanity produced by epilepsy, which was inherited from the mother, of defendant. At the first trial of said defendant, the following part of an informal deposition made by Minnie Midland, Louis Lundberg, Minnie Hanson, and August Burquist, all residing in the city of Stockholm, Sweden, was admitted in evidence:—

“‘We state that the mother of Albert Lundquist [25](meaning defendant) was subject to epileptic fits, which fits occurred several times in our presence; and that his brother was insane at times, and always an idiot.’

“No objection was made to the introduction of this part of said deposition on the first trial of said case, and the above part of said deposition was admitted in evidence by agreement and consent of counsel for the prosecution. On the fifth day of September, 1888, J. J. Dunne, Esq., assistant district attorney of said city and county, who conducted the prosecution at the first trial of this case, and who is to conduct the prosecution of this case at the second trial thereof, notified me that he would not, at the second trial of this case, consent to the admission in evidence of said part of said deposition; that said deposition and said part thereof are not in proper legal form, and cannot be put in evidence unless objections thereto are waived by counsel for the prosecution. The facts stated in said part of said deposition and the proof thereof are material and essential, and necessary to the defense of this case. I desire to obtain the testimony of said witnesses upon facts in a proper legal form, and I cannot safely proceed to the trial of said case without such testimony. All of said witnesses now reside in the city of Stockholm, Sweden.”