People v. Ward
Before: Harrison, McFarland
Synopsis
Criminal Law—Evidence—Transcript of Testimony Taken at Preliminary Examination—Authentication—Parol Evidence.—In a. criminal case, where the testimony of a witness taken at the preliminary examination of the defendant may be allowed in evidence under the statute, the reporter must certify to the transcript of the testimony that it is a correct statement of such testimony, and is not at liberty to-substitute or certify to a copy of the testimony taken by him, and the transcript of the testimony must be so authenticated that an inspection of it will show that it is testimony taken at the preliminary examination of the accused who is on trial, and must not depend in any respect upon the memory of the magistrate or the reporter, and no oral proof can be allowed at the trial for the purpose of showing against what defendant, or upon what charge, or at what time, the testimony was. taken.
Id.—Improper Certificate.—Where the transcript of testimony taken at. a preliminary examination does not have the title of any court or cause-in which the testimony was taken, and it is certified to be a true copy of the testimony instead of a correct statement of the testimony, the-authentication and certificate are not sufficient to be admissible in evidence upon the trial of the accused.
Id.—Statutory Construction—Testimony not Given in Presence of-Court—Compliance with Statute.—A statute purporting to impair the fundamental right of the defendant in a criminal prosecution to be-confronted with the witnesses against him in the presence of the court is to be liberally construed in his favor, and whenever the state in its-prosecution for a crime would offer against the accused the testimony of witnesses not given in the presence of the court, it must point to a-statute which authorizes such procedure, and bring itself within its-provisions.
Ld.—Larceny of Cow—Evidence.—Upon the trial of a defendant accused of the larceny of a cow it is error to refuse to allow the defendant to-answer a question which would go to the respective credibility of th& defendant and of a witness for the prosecution, whose testimony had placed the defendant in the position of having the possession of the stolen cow without accounting for such possession.
Id.—Purchase of Stolen Cow—Good Faith Immaterial.—If the defendant had no connection with the taking of the cow, and did not know that it had been stolen until the time of his trade therefor, the question of good or bad faith in making the contract of purchase would be immaterial, and it cannot be incumbent upon him to establish his good faith in trading for the cow.
Id.—Larceny Distinct from Receiving Stolen Goods.—The crime of larceny is distinct from that of receiving stolen goods, and proof of the latter crime is insufficient to convict one accused of the former.
Opinion — Harrison
Harrison, J. The appellant was convicted of having stolen a cow, and was sentenced to imprisonment in the state prison for the term of two years.
1. At the preliminary examination of the defendant before the committing magistrate one Bane was a witness, and at the trial in the superior court the prosecution, not being able to produce Bane before the jury, offered to read in evidence what was claimed to be a transcript of the testimony given by him at that examination. This transcript was filed with the papers in the case against the defendant that had been sent up by the committing magistrate, and had the following indorsement:
“ I hereby certify the foregoing to be a true copy of the testimony and the proceedings in the within-entitled action. Anna Grooms, Reporter.”
It was shown at the trial that the magistrate had appointed Miss Grooms, a shorthand reporter, to take the testimony at the examination, and she testified that the [656]indorsement had been made by her, and that the document from which they proposed to read had been prepared by her in the case against the defendant before the examining magistrate. The document itself did not, however, have the title of any court or cause in which the testimony was taken, nor the time at which it was taken. The defendant objected to the reading of the proposed testimony, upon the ground that the document itself did not show when or where or before whom it had been given, or that it had been iaken in any court, and that it was not properly certified. The court overruled the objection and allowed the evidence to be read, to which ruling defendant excepted.
The right of the defendant in a criminal prosecution to be confronted with the witnesses against him in the presence of the court is one of the fundamental principles of the common law, and can be taken from him only by the provisions of some express statute. As this is a right clearly connected with his personal liberty, any statute purporting to impair the right is to be liberally construed in his favor; and whenever the state in its prosecution for a crime would offer against the accused the testimony of witnesses not given in the presence of the court, it must point to a statute which authorizes such procedure, and bring itself clearly within the provisions of that statute. (People v. Mitchell, 64 Cal. 85.) This rule has been established in this state in section 686 of the Penal Code, and in the same section there is created, as an exception to the rule: “ 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 its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within the state.” The manner of taking this testimony is prescribed in section 869 of the same code, and the two
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