64 Cal. 85 | Cal. | 1883
On the trial of this case the court below permitted the district attorney, over the exception of the defendant’s counsel, to read in evidence against the defendant a deposition of James Morris, the complaining witness in the case; and the ruling of the court in that regard is the principal assignment of error.
In taking the deposition the officers, so far as it appears on the face of the deposition, Avholly failed to observe the requirements of section 882, supra, in putting the right in motion, and of section 869, in the manner of conducting the examination. The fact that the Avitness AAras unable to procure sureties for his appearance at the trial did not appear by examination on oath
appear that the statement was made on oath. It may have been a mere verbal statement, upon which no action could have been taken. Besides, the deposition does not show that it was read over to the witness, or that he signed it after acknowledging it to be correct, or that the presiding judge or magistrate before whom it was taken certified to it, as he was required to do under the Code, to entitle it to be read in evidence against the defendant. For the informalities and irregularities apparent on its face, the deposition was therefore inadmissible.
Taking the testimony of a witness on behalf of the people in a criminal case by deposition is an exception to the rule, Avhich entitles the defendant in a criminal action to be confronted Avith the ivitnesses against him in the presence of the court; and every substantial requirement of the Iuav Avhich authorizes it must be observed. Any real departure from the course prescribed for the taking of the deposition renders the deposition itself objectionable. (People v. Morine, 54 Cal. 575; Williams v. Chadbourne, 6 Cal. 559; People v. Chung Ah Chue, 57 Cal. 567.)
Judgment reversed and cause remanded for a neAV trial.
Shabpstein, J., Boss, J., McKinstry, J., Myrick, J., and Thornton, J., concurred.