People v. Johnson

HART, J.

The defendant was convicted of the crime of . manslaughter under an information accusing him of the crime of murder.

This .appeal is from the judgment and the order denying defendant a new trial.

The only point made here is on the ruling of the court refusing, it is claimed, to allow the defendant to establish a. foundation for the introduction in evidence of the deposition of a witness taken at the preliminary examination of the charge on which the accused was tried.

Section 686, subdivision 3, of the Penal Code, upon which counsel sought to introduce the evidence of said witness, provides,

inter alia,

that “where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within, the state. ’ ’

There is no claim that the witness was dead or insane at the time of the trial.

Even if it be true that the court committed, in a strict technical sense, error in its rulings refusing to permit the defendant to make whatever showing of diligence that he could make, still we think that an examination of the admitted facts will disclose that such rulings were without prejudice.

[778]

It appears that on the close of the case for the people, counsel for defendant called the sheriff of Napa county to the witness-stand, and by him undertook to lay the foundation for the introduction in evidence of the deposition of said witness. It may be stated that it is only from the colloquy which took place between counsel for the defendant, the district attorney and the court, on objections made by the district attorney to questions put to the sheriff by counsel for defendant, that the facts may be gathered, there being no other showing in the record upon the proposition. Thus we learn that at the preliminary examination one Ira M. Wilson testified on behalf of the people. It further appears from a statement by defendant’s counsel that, after the magistrate made the order committing the defendant to trial, a subpoena had been issued at the request of the district attorney, commanding said witness to appear at the trial of the defendant as a witness for the people, and that said subpoena was placed in the hands of the sheriff for service. It is admitted by counsel for the defendant that he did not himself cause a subpoena to be issued for said witness, but he stated to the court, when endeavoring to introduce proof preparatory to the introduction of Wilson’s deposition, that he had talked with both the sheriff and the district attorney prior to the date fixed for the beginning of the trial, informing them that he desired Wilson as a witness for his client; that he was told by the sheriff that the latter had in his possession a subpoena for Wilson issued at the request of the people, and that he (the sheriff) was making every effort, and would continue to make every effort, to find and subpoena and have said witness at the trial; that the district attorney stated to him that he (district attorney) would exert his full power to cause the subpoena to be served and have the witness at the trial. In ■order to lay the foundation for the admission of Wilson’s •deposition in evidence, the attorney for the defendant sought to show these facts as establishing or tending to establish that the witness could not, after the exercise of “due