People v. Shah

WARD, J. Defendant appeals from a judgment of conviction of assault with a deadly weapon and from an order denying a new trial. The information in two counts charged assaults on different parties. The jury failed to reach a verdict on the first count. The second count is the basis of this appeal, and alleges an assault with a deadly weapon upon one Walter Szajna.

It is claimed that the court erred in permitting the testimony of an absent witness to be read as a deposition. It is also urged that the court committed error in giving and refusing to give certain instructions.

Testimony taken before a committing magistrate may be read if the trial court is satisfied that the witness cannot, after due diligence, be found within the state. (Pen. Code, § 686, subd. 3.) It is defendant’s contention that “no competent legal evidence was introduced” to show that Szajna was not in the state. It appears that Szajna was in the state on previous dates when the case had been set for trial, but was continued, at the district attorney’s suggestion, on account of a crowded calendar. Defendant does not claim that it was possible to try the case on the previous dates. Szajna was definitely placed in Chicago a short period before the trial.

The words “due diligence” as used in Penal Code, section 686 need not be proved by “legally competent” evidence as defendant claims, but by “satisfactory evidence.” “ Deposition ’ ’ and a ‘ ‘ preliminary examination ’ ’ before a committing magistrate are often used interchangeably. However, “deposition” in the section specifically refers to the testimony of a witness who probably will be unable to be present at the trial and whose testimony is taken conditionally in the presence of the defendant and read at the trial, if the witness does not appear in person. The transcript of the testimony of a witness given in the presence of the defendant and to whom there has been given an opportunity-to cross-[724]examine at the preliminary hearing may likewise be used as evidence “upon its being satisfactorily shown to the court that he . . . cannot, with due diligence, be found within the state.”

A number of citations are presented by each side, but they are of little assistance, as in each opinion the facts of the case and the activity of officials or attorneys are considered as applicable to the particular case. Unless there is an abuse of the discretion used by a trial judge, reviewing courts will not interfere. In the present case it does not appear that any official was derelict in failing previously to subpoena Szajna, and the issuance of a subpoena from San Francisco, California, to Chicago, Illinois, would have been a futile act. The record does not indicate that on the point raised the defendant was deprived of a substantial right.