People v. Bryant

[376]

FINCH, P. J.

The defendant was charged -with the crime of assault with a deadly weapon with intent to commit murder. He was convicted of assault with a deadly weapon. This appeal is from the judgment and the order denying a new trial.

There can be no possible doubt as to the sufficiency of the evidence to support the verdict and judgment. The defendant severely cut the prosecuting witness in several places, including “laceration of the face and left ear, . . . two large, long incisions on the abdomen, which took seventeen horsehair stitches, . . . many small lacerations on the left arm and the side, . . . some of them were very superficial and some of them deep enough to suture, ... a laceration of the left hand, and it took six horsehair sutures to sew that up.” The defendant claimed that he acted in necessary self-defense. There is sufficient evidence to support a finding either way upon that issue.

Appellant contends that the court erred in excluding the testimony of a certain witness given at the preliminary examination. Evidence was introduced which tended in some degree to show that the witness could not “with due diligence be found within the state.” (Pen. Code, sec. 686.) The trial court held that the evidence failed to show due diligence. While it appears that the court was justified in so holding, it is unnecessary to examine the evidence bearing upon that question, because the record does not show what the proffered testimony was and, in the absence thereof, it is impossible to determine whether its exclusion prejudiced the rights of the defendant.

(People

v.

Brotherton,

47 Cal. 388, 404;

People

v.

Bidleman,

104 Cal. 608, 615 [38 Pac. 502];

People

v.

Singh,

182 Cal. 457, 482 [188 Pac. 987];