People v. Feigelman

CONREY, P. J.

By indictment in ease superior court number 16,949, defendant was charged with grand larceny from the person of one Bernard Odell, committed on the third day of August, 1921. By information in case superior court number 18,925, he was charged with grand larceny from the person of Willett Woolsey, committed on the ninth day of September, 1922. By order of court the two cases were consolidated and thereafter were tried at the same time. The defendant was convicted on both counts and thereafter was sentenced to imprisonment in the state prison. He appeals from each judgment and in each case from the order denying his motion for a new trial.

Section 954 of the Penal Code authorizes the court to order the consolidation of two or more criminal actions where the indictments or informations charge the commission of two or more different offenses of the same class of crimes or offenses. The fact that the two crimes charged against the defendant were committed, the one more than a year after the other, does not in our opinion furnish any ground for the claim that the court abused its discretion in consolidating said actions and causing them to be tried at the same time.

On the thirtieth day of August, 1921, pursuant to an order of the superior court, the testimony of Bernard

[321]

Odell was taken upon conditional examination, the order therefor being based upon an affidavit, stating among other things that the witness was then about to leave the state. By an order of that same date the case was set down to be tried on the twenty-fourth day of October, 1921. The trial was postponed from time to time and did not actually occur until the thirty-first day of May, 1923. Sections 1335 to 1346, inclusive, of the Penal Code provide for the examination of witnesses conditionally as therein set forth. The application must be made upon affidavit stating . . . “4. That the witness is about to leave the state ...” The application may be made to the court or a judge thereof and must be made upon three days’ notice to the opposite party.

When the Odell deposition was offered in evidence testimony was introduced for the purpose of showing that due diligence had been exercised to procure the attendance of the witness Odell at the trial, but that such attendance could not be secured and that in fact the witness was out of the state. The process server, a deputy sheriff, armed with a subpoena, on the seventh day of May, 1923, went to the Northern Hotel, in the city of Los Angeles, where Odell had been living, and was there informed that Odell had gone away and had left a forwarding address at Pittsburg, Pennsylvania. Return upon the subpoena was made accordingly. It appears that in fact Odell at that time had gone to Bakersfield and returned to the Northern Hotel on or about the fifteenth day of May. On the same day he “cheeked out” from the hotel and again left his forwarding address, a street number at Pittsburg, Pennsylvania. It does not appear that the process server or the district attorney knew that Odell had thus returned to the city of Los Angeles. Thereafter a deputy sheriff, whose duties were in connection with the office of the district attorney, on the twenty-ninth day of May, telegraphed to Odell at Pittsburg, in the name of the district attorney, stating therein that this case was set for May 31st, and asking advice as to whether Odell could be here. By reply of the same date one Mrs. Gold-stein, a sister of Odell, replied that Odell had left for Europe. We think that these facts were sufficient to warrant the court in determining that due diligence had been