People v. Green

DRAPER, P. J.

Convicted of auto theft (Veh. Code, § 10851) defendant appeals.

Robert Johnson testified at the preliminary examination that: he lived in Minnesota, and owned a ear whose Minnesota license number he gave; he parked the car on a Richmond street and locked it; it was gone when he returned; he gave no one permission to take it; and the car recovered by the police was his.

After impanelment of the jury, court and counsel had a brief discussion in chambers, at the end of which the court indicated that it would admit transcript of Johnson’s testimony at the preliminary, but stated to defense counsel “You may object if you want.” Trial then resumed in the presence of the jury. The prosecutor, without being sworn, stated that he held copy of a telegram he had sent to Johnson in Minnesota asking that Johnson confirm by telegram and by airmail letter his telephone statement that he could not attend the trial. This wire was offered and marked for identification only, but nonetheless was read to the jury. Similarly, a telegram and a letter purportedly from Johnson in Minnesota, stating that for medical reasons he would be unable to attend the trial, were marked for identification and read aloud. No objection was made by the defense.

The prosecutor then asked permission to read the transcript of Johnson’s earlier testimony. The defense announced “we object.” The objection was overruled and the testimony was read to the jury. At the end of the day, defense counsel moved to strike the testimony of Johnson which had been read into the record, specifying the ground that there was no

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evidence that he was unavailable to testify in person. The motion was denied. The prosecution then asked that the two telegrams and the letter, all previously marked for identification, be admitted in evidence. The defense objected upon the ground there was no testimony relative to any of them and that they were mere hearsay. The objection was overruled and the documents admitted.

Johnson’s earlier testimony was admissible only if it had been “satisfactorily shown to the court that he . . . can not with due diligence be found within the state” (Pen. Code, § 686, subd. 3). Of course, a showing that Johnson was absent from the state would establish that no degree of diligence would find him here (cf.