People v. Lyons

CRAIG, J.

Appellant was charged by information with having on or about the fifteenth day of June, 1925, committed the infamous crime against nature as denounced by section 286 of the Penal Code, upon one O’Neil Lee, a male person.

It is admitted that the case was set for trial on March 9, 1926, on which date a jury was impaneled and sworn, and the information was read, and the defendant’s plea of not guilty stated. The usual mid-day recess was then taken, and at 2 o’clock P. M., upon reconvening, the trial court was informed by the district attorney that although a deputy sheriff was provided during the preceding week with a subpoena for all witnesses, he had been unable to serve the prosecuting witness, but that he was advised at

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Lee’s residence that the latter had gone to Los Angeles and would return to San Diego in time for trial; that during the said recess a telegram had been received which stated, “Do not expect us for some time. O’Neil is ill.” The district attorney stated that a trial of .the case would be impossible without this witness, and assured the court that if a continuance be granted, an officer would at once proceed to Los Angeles and search for the boy. Counsel for the defendant objected to any extension of time, but after argument of the matter the trial was continued until Wednesday, March 10th, at 2 o ’clock P. M.,' and the jury were admonished to refrain from discussing the case or forming an opinion in the matter. On the afternoon of March 10th a deputy sheriff was sworn and, over the objection of the defendant, that diligent effort had not been made to subpoena the witness during the preceding week, testified that he had visited an address in Los Angeles, but that he had been unable to locate Lee. A motion for further continuance was resisted by the defendant, although it was admitted that his witnesses were not incarcerated, and were all within the jurisdiction of the court. The district attorney informed the court that Lee was the complaining witness, and further said:

“Now that is the situation we are confronted with, your Honor, and it is absolutely imperative that we have the benefit of this boy’s testimony before we can proceed to trial. We are confronted with a situation that we did not expect. I thought that he would be here this morning. In fact, word was left for all these boys to be here this afternoon, but of course we cannot lay a sufficient foundation under the circumstances to make a motion that the testimony of this lad taken at the preliminary examination before a magistrate be read into the record to the jury. We cannot lay the foundation. So the only alternative we have, your Honor, is to move that we be given a brief continuance, and I will undertake to send Mr. Buck up to Los Angeles and Glendale this afternoon and have this boy here tomorrow afternoon, or know the reason why. There are some matters in connection with this going away with this boy that I do not care to refer to at the present time.”