People v. Mitchell

McKee, J. On the trial of this case the court below permitted the district attorney, over the exception of the defendant’s counsel, to read in evidence against the defendant a deposition of James Morris, the complaining witness in the case; and the ruling of the court in that regard is the principal assignment of error.

[86]The deposition purported to have been taken under section 882 of the Penal Code. According to the provisions of that section the right to take the deposition of a witness, on behalf of the people, in a criminal case, arises out of the fact that the Avitness is unable to procure sureties for his appearance on the trial; and that fact must be satisfactorily established by the examination on oath of the Avitness himself, or of some other person. When the fact has been judicially ascertained, the right to take the deposition of the Avitness may be put in motion. But the examination of the witness must be had in the presence of the defendant, or after due notice to him, and “ must be conducted in the same manner as the examination of a Avitness before a committing magistrate is required by the ' Penal Code to be conducted.” That is to say, the deposition must contain the name of the Avitness, his place of residence, and his business, the questions put to him and his answers, together Avith the objections, if any, made, and the grounds of the objections, to any of the questions or ansAArers, and the rulings thereon; and when the examination is concluded, it must be signed by the witness, or his reasons for refusing to sign stated, and the presiding judge before Avhom it has been taken must sign and certify to it, if it has been reduced to writing by him or under his direction, unless the examination has been taken down by a phonographic reporter by order of the judge, in Avhich case the reporter’s transcript, Avhen Avritten out in long hand and certified by him as being a correct statement of the testimony and proceedings, shall be received as prima facie correct. (§ 869, Pen. Code.) But the testimony of the Avitness is only taken conditionally (§§ 686, 869, Pen. Code), and cannot be read against the defendant until it has been “ satisfactorily shoAAm to the court ” that the witness is dead or insane, or cannot with due diligence be found within the State. (§ 686, Pen. Code.)

In taking the deposition the officers, so far as it appears on the face of the deposition, Avholly failed to observe the requirements of section 882, supra, in putting the right in motion, and of section 869, in the manner of conducting the examination. The fact that the Avitness AAras unable to procure sureties for his appearance at the trial did not appear by examination on oath