Clark v. Superior Court

BRAY, P. J.

Petition for writ of mandamus to compel the superior court to issue an order for the taking of depositions of witnesses who testified for the People in a grand jury investigation resulting in the indictment of petitioner for violation of section 26104, Corporations Code.

Question Presented

Except in the limited situations provided in section 1349, Penal Code (witness residing outside the state), in section 1336 (witness about to leave the state or so sick or infirm as to afford reasonable grounds for apprehension that he will be unable to attend the trial), and in section 1335 (conditional examination of witnesses), may the defendant take the deposition of a prosecution witness in a criminal case?

Record

The San Francisco Grand Jury after examining certain witnesses indicted petitioner for violation of section 26104, Corporations Code (sale of securities without permit). Petitioner moved the superior court for an order permitting the taking of the deposition of said witnesses, alleging that the witnesses were examined before the grand jury mostly under leading questions of the prosecuting attorney, that the witnesses answered questions “yes” and “no,” that petitioner is deprived of a fair trial by not having a record available to him for purposes of cross-examination, and that petitioner’s substantial rights will be prejudiced if he is not permitted to take the deposition of said witnesses. The court denied the

[741]

motion. Petitioner then filed his petition in this court to compel the superior court to order the taking of said depositions.

1.

Petitioner Not Entitled to Take Deposition.

It is an interesting thing that the question of the right of a defendant to take the deposition of a prosecuting witness except in limited situations such as those set forth in the before-mentioned code sections, so far as we can learn, has never before been raised in this state, nor in England, nor, except for three cases, in the United States. Ever since the beginning of the common law, it apparently has been believed by both prosecuting and defense attorneys and the courts that such depositions could not be taken, for it has been the universal practice not to take them. The only cases on the subject in any jurisdiction called to our attention or that we have been able to find are