People v. Land

ARCHBALD, J., pro tem.

Defendant and one Walter Blankenship were jointly charged in an information filed by the district attorney of Los Angeles County with the crime of grand theft. On the trial of defendant Land the jury returned a verdict of guilty. Prom the judgment of conviction entered upon said verdict and from the order denying his motion for a new trial, defendant Land has appealed.

Appellant urges (1) that the court erred in permitting the testimony of a witness taken at the preliminary hearing to be read in evidence at the trial, and (2) that the verdict lacks the support of evidence.

(1) It is contended that the foundation laid was insufficient to show that the witness Gleason could not with due diligence be found within the state. It was admitted that Gleason testified at the preliminary hearing of appellant and was cross-examined by his counsel. It was also shown by a witness from the sheriff’s office that telegrams were sent to Gleason at Jerome, Idaho, and replies received thereto, and that following these Gleason appeared in Los Angeles prior to the preliminary hearing, and that he left about two days after such hearing saying that he was going-back to'his home in Jerome, Idaho.

The term “due diligence”, as used in section 686 of the Penal Code, is a relative one, and its application

[198]

depends upon the particular facts of each case.

{People

v.

Fay,

82 Cal. App. 62 [255 Pac. 239].) It would seem that where the introductory evidence discloses, as it does here, that the witness is a nonresident of the state, such fact alone -would show that nq amount of diligence in the use of the process of the court would avail. The question of what constitutes “due diligence” addresses itself to the discretion of the trial court upon the facts and circumstances shown, and only in case of an abuse of such discretion would an appellate court be justified in reversing a criminal case where the judgment was otherwise correct.

{People

v.

Ramos,