People v. Garrett

The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred,

» The appellant was convicted of murder. The only error assigned is the exclusion, on the trial, of a certain deposition taken before the Recorder of Sacramento city, on his preliminary examination, before being held to answer. The deposition was taken upon notice to the State’s attorney, who was present and cross-examined the witness. It is urged that this is a sufficient compliance with the statute, and inasmuch as the deposition was taken in the course of a judicial investigation, between the same parties, it was admissible as evidence upon the final trial.

Several English authorities have been cited to sustain this position. These cases arose under a statute requiring examining magistrates to reduce the testimony of witnesses to writing, and it was held that such depositions might be used on the final hearing. These decisions differ from the present case in this, that the law does not direct the recorder to take the depositions of witnesses on preliminary examinations, and that the statute of this State permitting depositions to be read upon criminal trials, only authorizes such depositions to be taken after the prisoner has been held to answer. Proof by deposition was unknown to, and is an innovation upon, the common law; and, as repeatedly held, it is necessary that the statute should be followed strictly.

The deposition in this case was inadmissible. First, because the [205]recorder was not authorized or required to take it; and second, because taken before the defendant was held to answer.

The judgment is affirmed, and the Court below directed to appoint a day for executing the sentence.