People v. McNabb

CRAIG, J.

The defendants were jointly charged with robbery of one Robert Mahon in Los Angeles County on or about May 21, 1922, and appeal from the judgment based upon a verdict of guilty rendered the sixteenth day of Janu

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ary, 1923, and from the order denying their motion for new trial.

The principal grounds of appeal consist of alleged insufficiency of evidence to sustain the verdict, improper admission in evidence of an accomplice’s testimony taken at the preliminary examination, and failure to corroborate such testimony; the soundness of the first ground turns upon that of the latter two, and accordingly the judgment must stand or fall with them. If there was not sufficient competent evidence of guilt a new trial should be granted.

The evidence for the state opens with the testimony of one Cecil Coons, given upon the preliminary examination, wherein he confessed to complicity with these appellants in the commission of the offense. Thereafter and prior to the trial this witness pleaded guilty and was sent to the industrial school at Chino, California, from which he escaped. His testimony is prefaced by that of two superintendents of the institution as to his disappearance, of a police detective—the arresting officer—that he published a bulletin to all officers in the state bearing the picture and description of the fugitive, visited all of his known haunts and places where rumors indicated he might be found, asked hundreds of Los Angeles officers to watch for him, and inquired of the county probation officer as to his whereabouts, and the latter enlisted the services of the sheriff and the police department. Bach having testified that no trace had been found of the witness’ whereabouts, the testimony of Coons was read to the jury.

Appellants contend that this did not constitute sufficient showing that the witness could not be found within the state. It is in great measure a question of fact for the trial court to determine. It appears that a double search was instituted for Coons. He was sought both as a witness and as a fugitive from justice. It is seldom that measures such as here adopted are taken merely to procure a witness in any action, and we cannot say that more diligence was required or contemplated by section 686 of the Penal Code. Again, Floyd Coons, a brother of Cecil Coons, testified that the absent witness was in Mexico. Section 686 of the Penal Code provides that the deposition of a witness on the preliminary examination may be read at the trial “upon it being satisfactorily shown to the court that he is dead or