People v. Harris

[702]

THOMPSON, J.

The defendant was convicted of robbery of the first degree and sentenced to imprisonment in the state prison at Folsom for the term prescribed by law. He has appealed from the judgment. Only one question is presented on this appeal. It is contended the court erred in permitting the reading to the jury of testimony of the prosecuting witness which was taken at the preliminary examination of the case, without first requiring adequate proof of due diligence on the part of the district attorney to secure the presence of the witness. It is asserted the admission of this evidence, under the circumstances of this case, was a violation of the provisions of section 686 of the Penal Code, which entitle the accused person to be confronted with the witnesses against him. It is claimed the defendant was prejudiced by the absence of the prosecuting witness in this case.

We are of the opinion the court did not err in permitting the reading to the jury of the testimony of the prosecuting witness which was taken at the preliminary hearing, under the circumstances of this case, since it appears that due diligence was exercised by the district attorney to procure the attendance of the witness, who could not be found.

The record shows that the prosecuting witness John Hill was a horse trader. He had no fixed habitation. The preliminary examination was twice continued before his presence was secured at that hearing. The defendant was present at that hearing represented by the same attorneys who appeared at the trial of the cause. The defendant was then confronted by the prosecuting witness, who was cross-examined at great length by his attorneys. Chiefly upon his evidence the defendant was held for trial in the superior court. The cause was first set for trial in the superior court for March 31, 1936. Upon adequate showing therefor, the trial was continued to April 7, 1936, on account of the absence of the prosecuting witness. On what we deem to be adequate proof of diligence on the part of the district attorney to procure the presence of this witness, over the objection of the defendant, the testimony of Hill, which was taken at the preliminary hearing, was read to the jury at the trial of the case.

The showing of diligence consists of the following evidence: At the time of the preliminary examination the witness