People v. Ramos

LANGDON, P. J.

This is an appeal by the defendant from a judgment upon a verdict of conviction of the crime of grand larceny. The motion of the defendant for a new trial was denied.

The point urged upon appeal is that the court erred in allowing the district attorney to read to the jury the transcript of the testimony of the prosecuting witness which was taken in the police court upon the preliminary examination. The respondent contends that the transcript of this testimony was admissible under the provisions of section 686 of the Penal Code, for the reason that the witness could not be found within the state. The objection by the appellant to the application of said section in the present case is that there was not sufficient showing of diligence on the part of the people to locate the witness and secure his attendance at the trial.

[1]

Whether or not there has been due diligence is a question left to the discretion of the trial court based upon all the facts and circumstances, and “it is only in ease of an abuse of such discretion that this court would be justified in reversing a criminal case where the judgment was otherwise correct.

(People

v.

Witty, 138

Cal. 576, [72 Pac.

177]; Renton

v.

Monnier,

77 Cal. 450, [19 Pac. 820];

People

v.

Melendrez,

4 Cal. App. 399, [88 Pac. 372].)”

(People

v.

Leavens,

12 Cal. App. 178, [106 Pac. 1103].)

[2]

In the present ease, after the jury had been examined and sworn, the district attorney stated in substance that he had just learned that the complaining witness, Aranda, had not been subpoenaed, and that he had been informed that he was probably across the bay, and asked that a recess be taken until 2 o’clock to see if this witness could be located. At 2 o’clock Aranda was not produced, but a police officer was placed on the stand who testified, in effect, that a few days previously he had called at the hotel where Aranda had lived at the time of the commission of the crime, and had been told that he no longer lived there, and that the management of the hotel did not know his address. He then went to see Mr. Rubio, who had acted as interpreter at the preliminary hearing, and inquired of him the where