105 Cal. 652 | Cal. | 1895
Lead Opinion
The appellant was convicted of having stolen a cow, and was sentenced to imprisonment in the state prison for the term of two years.
1. At the preliminary examination of the defendant before the committing magistrate one Bane was a witness, and at the trial in the superior court the prosecution, not being able to produce Bane before the jury, offered to read in evidence what was claimed to be a transcript of the testimony given by him at that examination. This transcript was filed with the papers in the case against the defendant that had been sent up by the committing magistrate, and had the following indorsement:
“ I hereby certify the foregoing to be a true copy of the testimony and the proceedings in the within-entitled action. Anna Grooms, Reporter.”
It was shown at the trial that the magistrate had appointed Miss Grooms, a shorthand reporter, to take the testimony at the examination, and she testified that the
The right of the defendant in a criminal prosecution to be confronted with the witnesses against him in the presence of the court is one of the fundamental principles of the common law, and can be taken from him only by the provisions of some express statute. As this is a right clearly connected with his personal liberty, any statute purporting to impair the right is to be liberally construed in his favor; and whenever the state in its prosecution for a crime would offer against the accused the testimony of witnesses not given in the presence of the court, it must point to a statute which authorizes such procedure, and bring itself clearly within the provisions of that statute. (People v. Mitchell, 64 Cal. 85.) This rule has been established in this state in section 686 of the Penal Code, and in the same section there is created, as an exception to the rule: “ Where the charge has been preliminarily examined before a committing magistrate, and the testimony taken down by question and answer, in the presence of the defendant, who has either in person or by counsel cross-examined, or had an opportunity to cross-examine, the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within the state.” The manner of taking this testimony is prescribed in section 869 of the same code, and the two
The transcript of the testimony should, moreover, be so authenticated that an inspection of it will show that it is testimony which was taken at the preliminary examination of the accused who is then on trial, and must not depend upon the memory of the magistrate or of the reporter. To allow oral proof at the trial for the purpose of showing against what defendant, or upon
2. The appellant claimed in his defense that on the 21st of January he had received the cow from Bane in a trade with him for a pasture bill; while Bane, in the testimony which was read to the jury, stated that he had not traded any cow to the defendant at anytime in January. Upon his cross-examination Bane stated: “ I cannot remember of seeing defendant Ward at any place in San Bernardino county during January. He was not at my place in San Bernardino county.” The defendant testified in his own behalf that he went to Bane’s ranch on Tuesday, the 23d of January, and arrived there about 4 o’clock in the evening. He was then asked: “ Was Bane there at the ranch when you got there”? Upon the objection of the prosecution to this question, as irrelevant, incompetent, and immaterial, the court refused to allow the defendant to answer. This was error. The main issue before the jury was whether the defendant took the cow from the pasture himself, or whether it was taken by some one else, from whom he received it. There was no direct evidence to connect the defendant with the taking, and his statement that he took the cow in a trade with Bane would, in the absence of other evidence, have justified the jury in acquitting him. Bane’s statement, however, that he had not traded with him, if believed, showed the falsity of the defendant’s claim, and placed him in the position of having the possession of the stolen cow without ac
The court gave to the jury the following instruction: “If you believe, gentlemen, from the evidence that the • defendant traded for the said cow from one John M. Bane, and that he took and had possession of the same by reason of such purchase, although you may believe from the evidence that it had been stolen by the said Bane, you are instructed that such a taking, if in good faith, would not constitute larceny by this defendant; and in that case you will find the defendant not guilty.” This instruction was in the form requested by the defendant, except that the words, “ if in good faith,” were inserted by the court; and the defendant claims that such modification of the instruction made it erroneous.
The effect of this modification was to tell the jury that it was incumbent upon the defendant to establish his good faith in trading with Bane for the cow, even if they should believe that he had not been connected with the original taking, and had not known of the theft until after it had been completed. If the defendant had no connection with the taking of the cow, and did not know that it had been stolen until the time of his trade with Bane, the question of good or bad faith in making this contract would be immaterial. (Curlin v. State, 23 Tex. App. 683; Boyd v. State, 24 Tex. App. 570; 5 Am. St. Rep. 908.) The crime of larceny is distinct from that of receiving stolen goods, and proof of the latter crime is insufficient to convict a person who is accused of the former. The instruction thus given is also inconsistent with the following instruction given
The judgment and order are reversed.
Garoutte, J., and Van Fleet, J., concurred.
Concurrence Opinion
I concur in the judgment upon the last two points discussed in the opinion. As to the first point I express no opinion.
