People v. Howard

CRAIL, P. J.

Both of the defendants were convicted of robbery. The jury also found against defendant Howard on the additional issue that he had a prior conviction in the state of Pennsylvania of the crime of larceny from the person, a felony, and had served a term of imprisonment therefor in a penal institution. The two appeals are from these judgments of conviction and from orders denying a new trial.

The complaining witness, E. W. Savage, was not present at the trial, but he had testified at the preliminary examination where each of the defendants had been represented by counsel who had cross-examined such witness. Over the objection of the defendants the trial court permitted to be read in evidence the testimony of the witness Savage given at the preliminary examination. The defendants first

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contend that the overruling of this objection constituted prejudicial error.

Penal Code, section 686, subdivision 3, provides that such a deposition of an absent witness may be read “upon its being satisfactorily shown to the court that he . . . cannot with due diligence be found within the state ...” During the trial the district attorney called the process server, also the arresting officer who assisted in trying to locate the witness, the manager of the hotel where such witness lived, his bookkeeper and his wife. It appeared from the testimony of these witnesses that the complaining witness Savage had been operating the Jack Dempsey Cafe; that he had been living at the Barbara Hotel; that he was present at the preliminary hearing on April 3, 1936, at which time he was cross-examined by counsel representing both defendants; that he continued to operate the Jack Dempsey Cafe until April 26, 1936; that on that day he told the manager of the hotel that he had gone as far as he could and that he could not pay his bills nor could he pay his hotel bills; that he had been negotiating for a week or ten days trying to sell an interest in the cafe; that he had just learned by telephone from San Diego that the deal was off and that he was just simply going to throw up his hands and quit; that he left during the same night, and that this was the last seen of him; that he took all of his personal effects with him; that he left owing 'the hotel and numerous other creditors; and that he left no forwarding address or other means of reaching him. The testimony relating to the efforts made to locate the missing witness is set out on pages 17 to 59 of the reporter’s transcript. It would serve no useful purpose to set it forth herein; it is sufficient for the purposes of this appeal to state that a substantial showing of due diligence to locate the witness in Los Angeles County was made; that he could not be found, nor could any trace of his whereabouts be ascertained, and that no effort was made to locate him outside of such county. In the case of