People v. Crumbley

WOOD, P. J. In a non jury trial defendant was adjudged guilty of assault with a deadly weapon, a felony. He appeals from the judgment and the order denying his motion for a new trial.

He contends that the court erred in receiving in evidence the testimony of the victim, Wilburt Bloxham, which was given at the preliminary examination; and that the evidence was insufficient to prove an assault with a deadly weapon.

Mr. Bloxham was not present at the trial. In order to lay a foundation for presenting his testimony which was given at the preliminary examination, the People submitted testimony as follows:

Mr. Dengkin, an employee in the investigation department of the district attorney’s office, testified: On June 15, 1961, he received a subpoena which directed certain persons, including Wilburt Bloxham, to appear on June 19 as witnesses in the present ease. On June 16 he called Mrs. Bloxham by tele-[593]phone, and she said: She had not seen Mr. Bloxham for a couple of weeks or more—after he had taken her money and had beaten her; she had made numerous efforts to locate him through friends and neighbors, but she did not know where he could be found—that probably he went to Chicago or Salt Lake City; she did not know “a further address” of any relatives or persons where he might go in Chicago, but she knew he had relatives there. Mr. Dengkin testified further that, in a conversation with Mrs. Bloxham on the morning of the trial, he tried to ascertain whether there were other places where Mr. Bloxham might be located, or to ascertain where he was employed. She replied that she had no further information and had no idea as to his whereabouts—that his place of employment was the apartment house (which she managed) because he managed it for her when she was disabled. About 11:30 a. m. on the day of the trial, he asked his assistant to inquire at hospitals and the police department to see if he could locate Mr. Bloxham. About 11:55 a. m. the assistant reported that he had contacted the General Hospital, the city and county jails, and the coroner’s office, and that Mr. Bloxham was not at any of those places.

Mrs. Bloxham testified (with respect to the unavailability of Mr. Bloxham as a witness) : She last saw him on Sunday, a week before Memorial Day in 1961. On that day, about 8 a. m., he left the apartment or hotel, where they lived, and said he was going to get a package of cigarettes. She has not heard from him since that day. Several times when he had been drinking he would speak of going to Chicago or Salt Lake City. On several previous occasions he had left their home without telling her where he was going. Sometimes he would stay away three or four months. On some of those occasions he went to Salt Lake City. In an effort to locate him, she made inquiries in the immediate vicinity of their home.