People v. Beretoni

CHIPMAN, P. J.

Defendant was convicted of violating an ordinance of the city of Woodland, passed under the Local Option Law, prohibiting the keeping and conducting a place where alcoholic liquors are sold, the said city being incorporated and no-license territory. The appeal is from the judgment on the verdict.

Defendant urges but two grounds for the .reversal of the judgment:

First. That the court erred in admitting in evidence the deposition of the witness Joe Monieo; and,

Second. That the court erred in refusing to allow defendant to show the existence .of other places in the immediate neighborhood where alcoholic liquors were sold and distributed, in rebuttal of evidence that men were seen coming from the direction of defendant’s house in an intoxicated condition.

1. After having sufficiently made the preliminary proof of failure to find the witness Monieo within the jurisdiction of the court, the record shows as follows: “Mr. Bailey (prosecuting attorney) : We now offer to read in evidence the testimony of the witness Joe Monieo at the preliminary examination before Hon. J. E. Strong, justice of the peace sitting as committing magistrate in the ease of the People of the State of California, plaintiff,

v.

M. Beretoni, defendant, myself appearing for the prosecution and Julian & Gibbs appearing as attorneys for the defendant and cross-examining the witness. The Court: Is it duly certified ? Mr. Bailey: Duly certified. ’ ’

The grounds of objection were that “the deposition was never certified,” that it “has no proper certificate,” that it “appears to be in a different form from the one which was originally filed in the action,” that “it has been improperly

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withdrawn from the record,” that it “has been changed and modified,” that it “does not conform to the provisions of the statute,” that “it is not a true or correct copy of the testi-' mony taken.” i

It appeared that the reporter was appointed by the justice' of the peace and no objection was made to his appointment. “The Court: The certificate shows he was sworn, but the ques-, tion is whether the certificate would be evidence of that fact, or not.” A further objection was made, that the deposition] “does not state the name of the witness, nor the place of residence, business or profession.” Counsel for defendant stated' that he would ask “to have the reporter called to show that; he is not competent to act as reporter.in this case,” claiming] that he could not object at the taking of the testimony at the'preliminary examination and that “this is the proper time, for the making of that objection as the certificate of the cor-: rectness of the transcript of the testimony is merely