People v. Reilly

Belcher, C. The defendant was convicted of the crime of robbery, and sentenced to be imprisoned in the state prison for the term of twenty years. He appeals from the judgment and from an order denying his motion for a new trial.

The only point made for reversal is that the court below erred in permitting the deposition of John O’Brien, taken at the preliminary examination of defendant, to be read in evidence.

O’Brien was the prosecuting witness, and, when his deposition was offered, counsel for defendant objected that it was inadmissible under section 686 of the Penal Code; and, again, that it was incompetent and inadmissible, and that no foundation had been laid for its introduction. The objection was overruled and an exception reserved.

1. It is urged here that no foundation for the introduction of the deposition was laid, because “ no showing was made that the purported deposition ever was filed in the superior court, or with the county clerk of the city and county, or that the reporter had transcribed his shorthand notes into longhand, or that he ever certified to the same,” as required by subdivision 5 of section 869 of the Penal Code.

That section provides that when testimony, given at a preliminary examination, has been taken down by a shorthand reporter, “ the reporter shall, within ten days after the close of such examination (if the defendant be held to answer to the charge), transcribe into longhand writing his said shorthand notes, and certify and file the same with the county clerk of the county, or city and county, in which the defendant was examined.”

The record shows that the deposition produced was the testimony of O’Brien, the complaining witness, which had been taken down by question and answer before the committing magistrate, in the presence of the defendant, upon the preliminary examination of defendant touching this charge of robbery, including the cross-examination of the witness in behalf of said de[650]fendant by bis counsel; but it fails to show whether or not the testimony was taken down by a shorthand reporter, and, if it was, whether or not the reporter transcribed his shorthand notes into longhand writing, or ever certified or filed the same with the county clerk. So far, therefore, as we are advised the testimony may have been properly transcribed, certified, and filed, and this may have appeared on the deposition. And, if not, specific objection on this ground should have been taken, and the record should have been made to show the facts. But the rule is that, unless the record clearly shows error, no presumptions will be indulged that error was committed. We must presume, therefore, that the court rightly performed its duty, and that the ruling complained of was proper. (People v. Gibson, ante, p. 458.)