People v. Day

SHENK, J.

This is an appeal from a judgment of conviction and from an order denying a motion for a new trial in an action charging the defendant with the offense of contributing to the delinquency of a minor.

The principal point argued as .a ground of reversal is the alleged error of the trial court in admitting in evidence, in the absence of the prosecuting witness, the testimony of said witness taken at the preliminary examination.

The action was twice tried. A judgment of conviction following the first trial was reversed for reasons not involved in the present appeal. (See

People

v. Day, 125 Cal. App 106 [13 Pac. (2d) 855].) On September 8, 1932, the court made an order resetting the cause for trial on Friday, October 14, 1932. On September 12, 1932, the prosecuting witness was personally served with a subpoena to appear at the trial to be commenced on October 14th. On the day last mentioned, after the jury had been sworn to try the cause, it appeared that the prosecuting witness was not present; whereupon the prosecution offered to read

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in evidence the testimony of the prosecuting witness taken at the preliminary examination of the defendant. To this offer the defendant objected on the ground that the statutory requirement of due diligence had not been shown. At the request of the prosecution the court therefore issued a bench warrant for the absent witness and continued the trial to the following Monday. On Monday morning in the absence of the jury the prosecution proceeded to lay the foundation for the introduction of the deposition of the absent witness as required by section 686 of the Penal Code. In this behalf there was ample evidence on which the court could find and conclude that the witness had left the apartment with her husband on October 11, 1932, had started by automobile for Mount Vernon, Washington, where the mother of the husband resided, and that in all probability the witness was, at the time of the hearing, without the state of California. Such a finding is necessarily implied from the order made by the court, and was tantamount to a finding that the witness could not “with due diligence be found within this state”.