Hunter Charles was indicted on a charge of mudrer while in the perpetration of a robbery. It was alleged that Charles and one, Beebe, conspired to rob one, John Johnson who lived as a recluse in the easterly side of Cleveland. It was alleged that Beebe engaged the victim in conversation, and Charls struck Johnson on th head with a hammer, from which injury he died.

The jury in Comm onPleas returned a verdict of guilty as charged and Charles was sentenced to be electrocuted on Jan. 29, 1925. A stay of execution was had, pending, hearing in the Court of Appeals. That court reversed the judgment of the Common Pleas and further proceedings are now in the Supreme Court. Two questions are presented to this court:—

1. Are the provisions of 12668 GC. mandatory .

2. Did the court err in the instant case in refusing to grant a motion for the appointment of a commission to take depositions?

It is contended that the words “may grant commission” does not make the granting of the commission for taking depositions mandatory. It is claimed that it is purely discretionary with the court as to the advisability, by virtue of the language used in 13668 GC.

It is also urged that the trial court did not err in refusing to grant a commission to take a deposition sought by th edefense. “Discretion to grant commission to take depositions in a criminal prosecution, is reposed .in the trial court, and unless it clearly appears of record that the trial court discretion in refusing an application for such commission, a reviewing court will not reverse the order below. Yunker v. State, 28 OCA. 345.