People v. Dene

HALL, J.

Defendant, a Chinaman, was convicted of the crime of manslaughter, for the killing of one Wong Che, also, a Chinaman, and in due time appealed to this court from the judgment and the order of the court denying his motion for a new trial.

The only matter urged for a reversal is that the court erred in allowing the testimony, given at the preliminary examination of defendant by one Cornelius Lonergan, to be read in evidence over the objection of defendant, that

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due diligence had not been shown by the People in an effort to procure the attendance at the trial of the witness.

The determination of the question as to whether or not sufficient foundation has been laid for the reading of the testimony of a witness taken at the preliminary examination, is a matter lying largely in the discretion of the trial court. It presents a question of fact, to be determined in the first instance by the trial judge, and if there is substantial evidence in the record to support the conclusion of the trial court this court will not interfere with the ruling allowing the testimony to be read.

(People

v.

Lederer,

17 Cal. App. 369, [119 Pac. 949];

People

v.

Lewandowski,

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

People

v.

Nelson,

85 Cal. 421, [24 Pac. 1006].)

The showing contained in the record before us is sufficient to justify the ruling of the trial court.

At the preliminary examination the witness Lonergan gave his residence as at 272 Natoma Street. The information was filed on the sixth day of January, 1912. The trial of defendant commenced on the eighth day of May, 1912.