People v. Frank

THE COURT.

The defendant was convicted upon each of two counts of an information which in the first count charged him with the commission of the crime of burglary with intent to committ larceny and in the second count charged him with the crime of robbery. The court received in evidence the testimony given in January, 1923, at the preliminary examination, by Edwin A. MaePherson and his wife, Ellen MaePherson, to the effect that in their room in the Ambassador Hotel, in the city of Los Angeles, at the time stated in the information, the defendant, in their presence, committed the acts constituting the alleged crimes. Without this evidence it is reasonably certain that the defendant could not have been convicted; with it his guilt is established “beyond a reasonable doubt.’’ He appeals from the judgment and from an order denying his motion for a new trial.

The principal point relied upon in support of the appeal is that the court erred in permitting the depositions of said witnesses to be read in evidence. Counsel for defend

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ant, in stating his objection that no proper foundation was laid for admission of said depositions, insisted that there was nothing before the court tending to show “that the party therein mentioned is not in the county of Los Angeles or in the state of California; there is nothing there indicating that any diligent search or inquiry has been made for either one of those parties in the state.”

The information was filed on the ninth day of February, 1923. The case was first set down to be tried on the fifth day of April, at which date, at request of defendant, the trial was continued to April 23d. On April 23d the trial was continued to June 7th, and at that time the case was tried. In order to lay a foundation for the introduction of said depositions in evidence the district attorney first exhibited to the court and opposing counsel, along with the questions which had been propounded to Mr. MacPherson and the answers thereto, three documents, all “for the purpose of reading his testimony—both he and his wife.” The documents consisted of a telegram, dated April 4, 1923, from Denver, Colorado, directed to the district attorney, and which he stated that he had received, and purporting to be signed by said Edwin A. MacPherson; a letter dated April 5, 1923, purporting to be signed by the district attorney and addressed to said MacPherson at Fort Worth, Texas, and a letter dated May 3, 1923, Denver, Colorado, purporting to be signed by said MacPherson.