111 P. 263 | Cal. Ct. App. | 1910
Defendant was convicted of the crime of obtaining personal property of the value of $675 from one J. D. Ryan by means of false and fraudulent representations and pretenses. His appeal is from a judgment of imprisonment and an order denying his motion for a new trial. But one point is urged as ground for reversal. At the trial the prosecution was permitted, over the objection of defendant, to read in evidence, from a reporter's transcript, the testimony of R. L. Hamilton given at the preliminary examination of defendant. Hamilton, as a witness before the committing magistrate, had given material testimony corroborative of the charge made by the complainant Ryan. The district attorney represented to the court at the trial that he was unable to procure the attendance of Hamilton as a witness, for the reason that the latter could not be found. To establish the necessary foundation entitling him to read in evidence the testimony of Hamilton taken at the preliminary examination, the prosecutor called three witnesses. Mrs. Hamilton, wife of the desired witness, testified that on the Wednesday preceding the day of the trial (that being Tuesday) her husband had left for Mexico; that he told her he was going to Mexico, to which country he had contemplated going for about two weeks prior thereto; that she did not know positively where he then was, but was satisfied that he was in Mexico. It appeared further by the testimony of Arthur H. Aiken and Robert Mahel, process servers attached to the office of the district attorney, that a subpoena had been issued twenty-five days before the date of the trial for service upon Hamilton, but that no search had been made until a few days immediately before the trial to discover the whereabouts of the *130 missing witness. It was found then that Hamilton had left his customary place of abode and had informed his wife that he was going to Mexico. Upon this evidence the trial court became satisfied that due diligence had been used in the effort to procure the attendance of the witness and that he could not be found within the state.
It is provided by section
There was evidence tending to show that the witness Hamilton was, in fact, out of the state of California; there was the further evidence that some search had been made for him in the endeavor to secure service of a subpoena. The court determined that a sufficient foundation had been laid to entitle the testimony of the witness taken at the preliminary examination, as shown by the reporter's transcript, to be read in evidence. If there was any substantial evidence to support that conclusion, the ruling cannot be disturbed. Such evidence was before the court.
The judgment and order are affirmed.
Allen, P. J., and Shaw, J., concurred. *131