64 P. 259 | Cal. | 1901
This is an appeal from a judgment of conviction upon a charge of forgery. The facts sufficient for an understanding of the matters of law here presented for consideration will be found in the former appeal of People v. Bird,
Upon the trial of this cause, a witness, — Grove, the teller of the bank, — who had paid the money on the check presented by defendant, was admitted to be dead. He had testified at the preliminary examination of defendant, and upon two trials of this case. The prosecution offered, and there was admitted in evidence, the testimony of the deceased witness given upon the preliminary examination. The defendant then, in various ways and by different offers, sought to introduce in evidence the testimony of Grove given at the former trials of this case, and the evidence was excluded. Some objection is here made by respondent to the sufficiency of the form of these offers, but the objections are too technical to justify consideration in so important a matter, for it is plain that the rulings of the court went, not to the form of the objections, but to the single proposition that the testimony of the deceased witness given upon former trials *263
was under no circumstances admissible, and that only the testimony that such a witness had given upon preliminary examination was admissible. At common law, the testimony of a witness given upon a former trial of a cause between the same parties was admissible for or against either party, upon showing that he was dead or without the jurisdiction of the court. Such was the undoubted rule of evidence at common law, and before the adoption of the codes it was sanctioned and employed in this state. (People v. Murphy,
But, upon the other hand, there is in this no restriction upon the rights of a defendant. The rule as to him is the same as it was before the adoption of the codes, and as it stood at common law. He may waive his right of confrontation, if he so desires, and introduce in evidence the testimony of such dead or absent witnesses, whether that testimony was given at the preliminary examination or upon a former trial of the cause.
The refusal of the court to admit the testimony of George Francis and C.C. Corum, given upon the former trial of the cause, was, for the reasons above stated, also prejudicial error. The offer was not alone to prove the testimony by the recollection of the official reporter, reinforced by his stenographic notes, but included, as well, an offer to prove it by the official transcript of those notes on file in the court.
No other of appellant's specifications seems to require particular mention, saving one, where the court admitted evidence clearly prejudicial to defendant, concerning his presence with and relations to a certain woman, under a general assurance of the prosecution to connect it with the case. Upon the failure so to do, the court properly struck out the evidence, and instructed the jury to disregard it. The practice however, is one not to be commended, for there is inevitably some impression made and effect left upon the minds of the jurors.
The judgment appealed from is therefore reversed and the cause remanded for a new trial.
McFarland, J., and Temple, J., concurred. *265