People v. Grundell
Before: Hayne
Synopsis
Transcript of Reporter’s Notes.—A transcript of the shorthand reporter’s notes in a criminal case, certified as provided in section 869 of the Penal Code, is placed upon the same footing as a deposition, and is admissible in like cases.
Id. —Time of Filing. —The requirement as to the time of filing is merely directory. Filing in a reasonable time is sufficient.
Id. — Filing of Original Notes—Record must Show Error.—If the appellant claims that there was error in admitting the transcript because the original notes were not filed, he must show affirmatively that they were not filed.
Deposition Taken under Stipulation. —A deposition taken under a stipulation which provides for the admission of the deposition without conditions is governed by the stipulation, and not by the statutory provisions.
Accomplice — Corroboration.—The objection that a witness was an accomplice goes to the effect of the evidence, and not to its admissibility. Instance sufficient corroboration of a charge of stealing a steer.
Opinion — Hayne
Hayne, C. The appellant was convicted of grand larceny, and sentenced to one year in the state prison. Several points are made on the appeal.
[3021]. A motion was made in the superior court to set aside the information on the ground that the committing magistrate had continued the hearing without an affidavit or the consent of the defendant, as provided by section 861 of the Penal Code. Without expressing any opinion as to whether this section is merely directory or not, it is sufficient to say that from the record before us it cannot be determined that the continuance was not by consent.
The magistrate says in his affidavit that the examination was set by consent for the 30th of March, and was begun on that day; that when the prosecution rested, the hearing was continued for ten. days, at the request of the defendant; and that before the expiration of that time he was taken sick, and was unable to transact business before May 17th; but he does not state whether the intervening continuance was by consent or not.
The assistant district attorney, who had charge of the case, says in his affidavit that “ each and all of said continuances were within the knowledge and consent of defendant and each of his counsel.” As we construe this, it includes the continuance complained of.
The only opposing evidence^ is the affidavit of the prisoner himself. The affidavit of his then counsel is significantly absent. The court below evidently did not believe the statement of the defendant; and we do not see that it was bound to do so.
2. At the trial, the prosecution read in evidence, against the defendant’s objection, the shorthand reporter’s transcript of the testimony of one Lewis, given before the committing magistrate, and this is assigned as error.
Section 869 of the Penal Code provides for the taking down of such testimony." as a deposition,” and that “the transcript of the reporter appointed as aforesaid, when written out in longhand writing, and certified as being a correct statement of such testimony and proceedings in [303]
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