People v. Myers

burglary and appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial.

Over the objection of appellant the trial court permitted the prosecution to read to the jury the testimony of one Bush which was given at • appellant’s preliminary examination before the committing magistrate. Section 686 of the Penal Code provides that evidence may be received in that form only when the defendant has “cross-examined or had an opportunity to cross-examine the witness’’ at the preliminary examination. Appellant contends that the right contemplated by this section is the right fully and completely to cross-examine, and that in the present instance the right was abridged because the magistrate sustained objections to proper questions put to the witness by appellant’s counsel. Appellant argues thoroughly the proposition that the right to cross-examine referred to in section 686 is of the breadth for which he contends, and cites authority in support of his argument, but he presents neither argument nor authority upon the question touching the rulings of the magistrate, which he says were erroneous. We have merely the assertion that the rulings were improper. Under such circumstances we deem it more than sufficient to say that we have examined the record and that it appears to us that the rulings were correct. Granting for the sake of argument that they were not correct, we do not decide whether or not the fact would operate altogether to exclude the testimony from admission in the superior court.

[2]

The magistrate, of course, had the power to rule upon

[13]

objections to evidence offered during the preliminary examination. (See Pen. Code, sec. 869, subd. 3;

People

v.

Riley,

75 Cal. 98 [16 Pac. 544].)

The next question presented by appellant also concerns the reception in evidence of the testimony of Bush taken at the preliminary examination. The cause had been set down for trial on June 22, 1925. Bush was in attendance on that day in response to a subpoena which had been served upon him. The hearing was continued to June 30th and all witnesses were instructed by the court to return at that time. When the day came Bush was not present in court, but all witnesses were admonished by the court to return on July 9th, to which date the hearing was then continued. On that day the trial was commenced and it proceeded without interruption to a conclusion. It is contended that under these conditions the trial court erred in receiving in evidence the testimony of Bush which was taken at the preliminary examination. The admission of testimony in that form is governed by the provisions of section 686 of the Penal Code, already mentioned. The enactment provides in part that testimony heard at a preliminary examination may be read on a trial in the superior court when it is shown that the witness “is dead or insane, or cannot with due diligence be found within the state.” The prosecution endeavored to bring itself within this provision by proof that Bush left the state after June 22d and continued absent therefrom until the time when his testimony at the preliminary examination was read at the trial, and the evidence was such that the trial judge would have been justified in so finding. Appellant contends that this evidence was not sufficient as a foundation for the admission of the testimony in question. It is said that Bush, within the meaning of section 686, was found within the state when the subpoena was served upon him which required his presence in court on June 22d, and that a search for him within the state was unavailing under the statute after that service, after he had appeared on the day named in response thereto, and after he had failed to appear at later sessions under instructions from the court so to do and was in contempt of court for his derelictions. It is remarked, to state appellant’s contention in his own language, that “the force and effect of the statute has been spent” by the finding of a