People v. Thomas

HOUSER, J.

Defendant appeals from a judgment of conviction of the crime of assault with a deadly weapon, and from an order denying his motion for a new trial.

The first point presented by appellant for a reversal of the judgment is that on the trial of the action the trial court erred in permitting the deposition of a certain witness given at the preliminary examination of defendant to be read in evidence, in that prior to the offer to read such deposition in evidence due diligence was not shown to have been exercised by the prosecution in attempting to locate the witness within the jurisdiction of the trial court. In that connection the record discloses that a deputy sheriff gave testimony to the effect that, in order to serve a subpoena upon the witness in question he had made various inquiries among several of the friends and acquaintances of the witness in the neighborhood of his former place of residence and was informed by them that the witness was no longer a resident of the state. As no adverse evidence was offered, notwithstanding the fact that some other evidence was received, particularly with reference to the sending of a telegram by the district attorney addressed to the absent witness at his supposed place of residence without the state, together with the receipt of a reply to such telegram from some third person—to all of which defendant objected, and as to which there well might be proper question as to its admissibility—it is manifest that in permitting the deposition of the witness taken upon the preliminary examination of defendant to be read to the jury the trial court did not abuse its discretion and therefore that its ruling in the matter cannot be disturbed by this court. (8 Cal. Jur. 129, and cases there cited;

People

v.

Lewandowski,

143 Cal. 574, 576 [77 Pac. 467];

People

v.

Reilly,

106 Cal. 648 [40 Pac. 13] ;

People

v.

Leavens,

12 Cal. App. 178, 184 [106 Pac. 1103];

People

v.

Edwards,