People v. Kuranoff

VALLÉE, J.

Defendant was convicted of second degree robbery by the court sitting without a jury. The charge was that he had forcibly taken $869 from the person of Florence L. Nicholas. Mrs. Nicholas was not present at the trial. The court, over the objection of defendant, permitted the People to read in evidence her testimony taken at the preliminary examination of the defendant. Defendant urges that it was not shown that Mrs. Nicholas could not, with due diligence, be found within the state.

Penal Code, section 686, provides that in a criminal prosecution the defendant is entitled “to be confronted with the witnesses against him, in the presence of- the court, ’ ’ except that the testimony of a witness given at the preliminary examination of the defendant may be read in evidence upon its being satisfactorily shown to the court that he “cannot with due diligence be found within the state.”

On January 25, 1950, the trial of the action was set for March 6, 1950. The showing of diligence was as follows: John F. Egger, a deputy sheriff of the county of Los Angeles attached to the district attorney’s office and there assigned to the work of process serving, testified that he attempted to locate Florence L. Nicholas. On March 1, 1950, he went to the Post Office Cafeteria where Mrs. Nicholas was employed and spoke to the manager. The manager informed him that she had “quit.” He asked the manager if he knew her whereabouts or her home address. The manager gave him an

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address at 1430% Micheltorena Street, Los Angeles. That afternoon he went to that address, in a bungalow court, knocked on the door, and did not get an answer. He went back the next morning at 8 a. m. There was still no answer. He went to the manager of the court and asked for Florence L. Nicholas. The manager informed him that Mrs. Nicholas had gone to Arizona two or three weeks previously. He asked her if she knew where in Arizona. She said “no that, but that she was expecting to hear from the first wife of the man who Mrs. Nicholas was living with as soon as he sent her her alimony check. ’ ’ He testified that he 1 ‘ had no information other than that until this noon [March 6, 1950],” when “The manager called me and told me that she had received word from the first wife as to the whereabouts of Mr. Aines and Mrs. Nicholas”; that she told him Mrs. Nicholas was in Parker, Arizona. He further testified that he went to the registrar of voters, found no record of Mrs. Nicholas, and that was all the search he made and all the information he had on the subject. On cross-examination Mr. Egger testified that he did not see any communications from Mrs. Nicholas from Parker, Arizona, to the other people he mentioned, and “Q. You didn’t go out to see if she had a letter or anything of that kind? A. No, sir, they didn’t have any letters. Q. They said they received word, what word had they received, if you know? A. Well, the landlady called me this noon at the office and told me, prior to this noon she had received no word. Q. And the word she received so far as you know, you don’t know whether it was a letter, wire, or what? A. No, I don’t, sir”; that Mrs. Nicholas had not been subpoenaed for the trial on March 6, 1950; that he made his search for the purpose of subpoenaing her. The following then occurred: “The Court: Didn’t you ask her how she knew that? The Witness: You mean the landlady? The Court: The landlady, yes. The Witness: Well, she had a mail from Mrs. Nicholas. The Court: She had some mail, did she say she had some? The Witness: Yes, she showed it to me. The Court: She showed you the letter? The Witness: She showed me a stack of mail. She said, ‘They are mostly ads, I should forward them to her.’ The Court: I mean, she telephoned you this noon, didn’t she? The Witness-. Yes, sir. The Court: Said she just heard from her and she was in Parker? The Witness: No. Oh, no, she didn’t hear from her, she heard—it is quite complicated —the man who Mrs. Nicholas is living with, she heard from