People v. McDonald

DORAN, J.

In a trial before the court, a jury having been waived, appellant was found guilty of first degree robbery; and, appellant having admitted two prior felony convictions, the court adjudged appellant an habitual criminal. The prosecution of appellant was upon an amended information charging the offense of robbery, with two prior convictions of felony. The appeal herein is taken both from the judgment and from the order denying a motion for a new trial. It appears from the record that the testimony of the complaining witness Was essential to the case for the People; and that no conviction could have properly been obtained without such testimony. The complainant was not present at the trial and his testimony given at the preliminary examination was read into evidence over the objection of appellant. Appellant cites the admission of such testimony as error, upon the ground that there was not sufficient foundation for the reading into evidence of the testimony given by the complaining witness at the preliminary examination.

[506]

In this connection, the record reveals the following testimony, given at the trial by the process server who sought to serve a subpoena upon the complainant. It was upon the evidence given by the process server that the transcript of complainant’s testimony given at the preliminary examination was admitted into evidence at the trial.

“Q. Did you ever receive a subpoena to notify one, or to serve one Leonard York? A. I did. Q. And when did you receive that subpoena? A. I received that subpoena.in the latter part of October. Q. Of last year ? A. Of last year, yeS, sir. Q. Did you go any place to locate Leonard York? A. Yes, I did. Q. By the way, was there any address on the subpoena showing the residence? A. The only address that I had on the subpoena was that he worked in a Chinese cafe,, and to contact Officer Young. Q. Did it state where the Chinese cafe was? A. No, sir. Q. Did you contact Officer Young? A. I did. Q. That is Officer Young of the Los Angeles Police Department ? A. That is right. Q. After you contacted Officer Young, what next did you do ? A. Officer Young informed me that he had left the Chinese cafe,- and had appeared and was now working at 116 West Fifth Street. Q. Did you go to that place ? A. I did. Q. Did you find a person there by the name of Leonard York? A. At that time he was working there. That was about November 3rd. Q. Did you see him? A. No, sir. Q. Did you speak to anyone about him? A. I spoke to the manager of the cafe there and he said that he come to work at about three in the afternoon and works until eleven. Q. Did he return at any time during those hours? A. I returned the next day and they said he had moved—they had transferred him to 715 South Hill Street. Q. Did you go to that address? A. Not on that day, no sir. Q. When did you go there ? A. I went there about-this notation I am reading from I made at the time of the search. I went there on about the 5th of November. To South Hill Street. Q. What did you learn after you went to that address? A. I learned that he was not working there, he had not come to work that day. Q. Did you receive any information as to his whereabouts ? A. Not at that time, I did not. Q. What next did you do ? A. On the 6th I went back there and they said that he must have left, because he hasn’t returned. I asked them if he was discharged, and they said no. Q. Did you know whether or not there was any money waiting for him at that address, or wages ? . . .