People v. Morine

Department No. 1, McKinstry, J.: The first point of appellant’s counsel is stated as follows: “ The District Attorney offered in evidence a deposition, or what purported to be a deposition, consisting of what was claimed to be the testimony of A. J. Pitts, taken before a Justice of the Peace—the committing magistrate. The deposition was not certified by the magistrate as required by § 869 of the Penal Code, nor does it appear to have been taken in the presence of the defendant. The defendant objected to the deposition upon several grounds; among others, that it was not talcen in the presence of the defendant, and that the deposition was not properly authenticated. The objection was overruled, and defendant excepted. The deposition was then read in evidence.”

An examination of the transcript shows that the defendant’s counsel is mistaken in supposing that an objection was taken to thci deposition on the ground that “ it was not taken in the presence of the defendant.” The objection thus construed by counsel was :

“ Second,—That said deposition is incompetent for any purpose. Under our Constitution the Legislature has not the power to provide that any testimony shall be taken at the trial of a criminal case, except from the lips of the witness, and while the witness is on the stand confronting the defendant; that it is a matter of constitutional law, that in every criminal case the defendant shall be confronted by his witness, [méaning the witnesses against him] and that the taking of a deposition before the preliminary examining magistrate is not a compliance with that jn’ovision.”

This is evidently not an objection that it had not been proved that defendant was present at the examination and when the deposition was taken, but an objection that such a deposition cannot be received at the trial in any case.

It is not necessary to inquire whether the provision of the Penal Code, which authorizes a deposition taken before a commit tino- magistrate to be read at the trial, is constitutional. Sect[577]ion 686 of the Penal Code provides that a defendant shall be entitled to be confronted with the witnesses against him in the presence of the Court, except that where the charge has been preliminarily examined before a committing magistrate, and the testimony taken down by question and answer in the presence of the defendant, who has either in person or by counsel cross-examined, or had an opportunity to cross-examine, the witness, ® ® * the deposition of such witness may be read, upon it being satisfactorily shown to the Court that he * * * cannot with due diligence be found within the State.” And '§ 869 of the Penal Code is as follows: