People v. Kelly

CHIPMAN, J.

Defendant was convicted of the crime of robbery and, upon judgment of conviction, was sentenced to twelve years in the Folsom prison. He appeals from the judgment and the order denying his motion for a new trial.

In his brief, defendant presents but two objections to any of the proceedings' had at the trial.

First: It is claimed that the deposition of the prosecuting witness, Grunitz, taken at the preliminary examination, was improperly read in evidence by the district attorney for the following reasons: 1. Because his testimony “was taken through an interpreter in a foreign language and was not taken in conformity with section 869 of the Penal Code”; 2. Because such diligence in securing the attendance of the witness, as is required by subdivision 8, section 686 of the Penal Code, was not shown.

It appeared that the deposition was taken before the magistrate through the official reporter, reduced to longhand and filed with the clerk with the reporter’s notes and showed that the witness was duly sworn. It .did not, appear that either the reporter or the interpreter was sworn. The certificate of the reporter read as follows: “I hereby certify that

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the within transcript numbered from 1 to 15 both inclusive is a full, true and correct transcript of my shorthand notes, and a full, true and correct statement of all the testimony given and proceedings had upon the preliminary examination in the Justice’s Court of No. 2 Township, County of Merced, State of California, in the case entitled The People of the State of California vs. A. B. Kelly, on Friday, December 10, 1910, before J. J. Griffin, Justice of the Peace in and for No. 2 Township. (Signed) J. T. Conley, Shorthand Reporter.” The transcript shows as follows: “Richard Grunitz. A witness on behalf of the People, after being duly sworn testified as follows. (Through the German Interpreter L. Wagner.)” Then follows the deposition. The transcript shows that Grunitz was duly sworn. It must be presumed that the official reporter had duly qualified by taking his official oath to faithfully discharge his duties. It was not necessary that he be sworn at the preliminary hearing.

The question, then, is: Could the deposition be read without proof that the interpreter was sworn? ' The point was distinctly raised' at the time the offer was made and later by motion to strike out.