People v. Kelly

Defendant was convicted of the crime of robbery and, upon judgment of conviction, was sentenced to twelve years in the Folsom prison. He appeals from the judgment and the order denying his motion for a new trial.

In his brief, defendant presents but two objections to any of the proceedings' had at the trial.

First: It is claimed that the deposition of the prosecuting witness, Grunitz, taken at the preliminary examination, was improperly read in evidence by the district attorney for the following reasons: 1. Because his testimony “was taken through an interpreter in a foreign language and was not taken in conformity with section 869 of the Penal Code”; 2. Because such diligence in securing the attendance of the witness, as is required by subdivision 8, section 686 of the Penal Code, was not shown.

It appeared that the deposition was taken before the magistrate through the official reporter, reduced to longhand and filed with the clerk with the reporter’s notes and showed that the witness was duly sworn. It .did not, appear that either the reporter or the interpreter was sworn. The certificate of the reporter read as follows: “I hereby certify that

The question, then, is: Could the deposition be read without proof that the interpreter was sworn? ' The point was distinctly raised' at the time the offer was made and later by motion to strike out.

Section 869 of the Penal Code declares that the transcript of the reporter, “when written out in longhand writing, and certified as being a correct statement of such testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings.” Section 686 of the same code provides that the defendant is entitled to be confronted with the witness against him, “except that 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 in the state.”

In People v. Lewandowski, 143 Cal. 574 , 577, 578, [ 77 Pac. 467 ], it was held that, under these statutes, the transcript in longhand of the shorthand notes, duly certified and filed, “is placed upon the footing of a deposition.” Said the court:

‘‘ Whether taken through an interpreter or not, it is in each case the original testimony of the witness, in the same sense and to the same extent as is the testimony of the witness present at the trial, given through the medium of an interpreter, his original testimony on the trial, and in the cases provided by law may be read in evidence as such.” It thus appears that the deposition is “prima facie a correct statement of such testimony” and “may be read,” where, after due diligence, the witness cannot be found in the state. The statute does not require it to be shown at the time the deposition is offered to be read that the interpreter was sworn at the preliminary hearing. It was, of course, the duty of the magistrate to place him under oath the same as any other witness, but the burden of proving that he was not sworn was on the defendant. Nor does the statute require proof that the reporter was sworn before taking his notes of the testimony as a prerequisite to making the deposition “prima facie correct.”

Was due diligence shown?

Before the deposition was offered, the district attorney submitted his proof of diligence in endeavoring to secure the personal attendance of the witness. It appeared that the witness had been working in the neighborhood on a ranch and, it may be inferred from the testimony, as a blacksmith. The case was first tried on Fébruary 23 and 24, 1911, and the prosecuting witness testified at that trial. He was then working in the neighborhood. He informed the sheriff not long after, some time in the early part of March, that he was going to San Francisco to work, and gave the number of the place on Folsom street where he could be found. The district attorney knew that he was intending to go there, but he testified that he did not think it necessary to detain him and believed he would have no trouble in finding him; that he was not a “wandering character.” The sheriff went to San Francisco a few days before the trial, which began on April 10, 1911, taking with him a subpoena to serve upon the witness; he went to the number given by the witness and found a shop, but did not find the witness; he visited several blacksmith-shops in the city in search of the witness without avail; he made previous inquiry in Merced county where witness had been living but did not find him; subpoenas were sent to neighboring counties shortly before the trial and were re

It should be observed that witness Grunitz testified at the first trial and defendant introduced and read to the jury his testimony given at that trial. Just why the defendant made use of this testimony after having endeavored to prevent the reading of the testimony taken at the preliminary hearing is not apparent, unless it was to point out certain conflicting statements which in fact were not very material. In substance the testimony on both occasions was the same.

The only remaining error pointed out in the brief relates to the refusal of the court to give an instruction on reasonable doubt as formulated by defendant. It follows the stereotyped instruction on that subject and concludes thus: “But if, upon such consideration the minds of the jury are not firmly and abidingly satisfied of the defendant’s guilt, if the conscientious judgment of the jurors wavers and oscillates, then the doubt of the defendant’s guilt is reasonable, and you should acquit.” This instruction was refused because given elsewhere. The court gave several instructions on the subject of reasonable doubt, although not distinctly defining the terms, i. e., the court told the jury that “the prosecution must prove to you to a moral certainty and beyond all reasonable doubt, that the defendant and no one else committed the offense,” etc. Again: “It is not sufficient that the circumstances proved coincide, account for, and therefore render probable the theory sought to be established by the prosecution, but that they exclude to a moral certainty every other reasonable hypothesis than the single one of guilt, or the jury must find the defendant not guilty. ’ ’

Again, in speaking of the recent possession of stolen property, the court told the jury: “If the defendant under such circumstances offers and produces an explanation of the possession of such property, it is for you to say under all the evidence whether or not such explanatory evidence produces in your minds a reasonable doubt, and if such evidence does produce in your minds a reasonable doubt of his guilt, then

In People v. Cohn, 76 Cal. 386 , [ 18 Pac. 410 ], where the court was by the defendant asked but refused to instruct the jury that ‘‘ The burden is upon the prosecution of establishing every element of the crime of which the defendant may be convicted, beyond a reasonable doubt,” and also “omitted to give any other instruction of a like character, or stating or bearing upon the rule as to reasonable doubt in criminal cases,” the supreme court reversed the judgment. But we have found no case holding, where the rule stated in the Penal Code is given and is emphasized in many instructions and in various forms of expression, that it would be so prejudicial as to demand a reversal, for the court to refuse to give a specific definition of reasonable doubt. We find ourselves unwilling to so hold. It will be noticed that, in the concluding paragraph of the instruction refused, the jury are told that “if their conscientious judgment wavers and oscillates, then the doubt of the defendant’s guilt is reasonable,” and they should acquit. To make this statement free from objection, it should

The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.