People v. Kuranoff

Defendant was convicted of second degree robbery by the court sitting without a jury. The charge was that he had forcibly taken $869 from the person of Florence L. Nicholas. Mrs. Nicholas was not present at the trial. The court, over the objection of defendant, permitted the People to read in evidence her testimony taken at the preliminary examination of the defendant. Defendant urges that it was not shown that Mrs. Nicholas could not, with due diligence, be found within the state.

Penal Code, section 686, provides that in a criminal prosecution the defendant is entitled “to be confronted with the witnesses against him, in the presence of- the court, ’ ’ except that the testimony of a witness given at the preliminary examination of the defendant may be read in evidence upon its being satisfactorily shown to the court that he “cannot with due diligence be found within the state.”

On January 25, 1950, the trial of the action was set for March 6, 1950. The showing of diligence was as follows: John F. Egger, a deputy sheriff of the county of Los Angeles attached to the district attorney’s office and there assigned to the work of process serving, testified that he attempted to locate Florence L. Nicholas. On March 1, 1950, he went to the Post Office Cafeteria where Mrs. Nicholas was employed and spoke to the manager. The manager informed him that she had “quit.” He asked the manager if he knew her whereabouts or her home address. The manager gave him an

A finding of a trial court that a sufficient showing of due diligence has been made will not be disturbed on appeal unless its discretion was abused; that is, unless it appears that the evidence is insufficient to support the finding. (People v. Mueller, 168 Cal. 526 , 529 [ 143 P. 750 ]; 8 Cal.Jur. 129, § 217.) The right of a defendent in a criminal action to be confronted in person by the witnesses against him, in the presence of the court, is a valuable and substantial one. (People v. Lewandowski, 143 Cal. 574 , 576 [ 77 P. 467 ] ; People v. Hayes, 72 Cal.App. 292 , 301-307 [ 237 P. 390 ].) “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 the State must “bring itself clearly within the provisions of that statute.” (People v. Ward, 105 Cal. 652 , 656 [ 39 P. 33 ].) “The right of a defendant in a criminal action to cross-examine the witnesses against him is of the highest importance.” (People v. Rinesmith, 40 Cal.App.2d 786 , 790 [ 105 P.2d 1021 ].) The phrase “cannot with due diligence be found within the state” means “that some effort must be made to locate the witness in the state at large unless there is evidence from which the court may properly conclude

There was no substantial evidence adduced that Mrs. Nicholas could not “with due diligence be found within the state.” (People v. McFarlane, 138 Cal. 481 , 488 [ 71 P. 568 , 72 P. 48 , 61 L.R.A. 245 ]; People v. Ballard, 1 Cal.App. 222 181 P. 1040 ]; People v. Hayes, 72 Cal.App. 292 , 301, 307 [ 237 P. 390 ]; People v. McDonald, 66 Cal.App.2d 504 [ 152 P. 448 ] ; People v. Blanks, 67 Cal.App.2d 132 , 135 [ 153 P.2d 449 ].) On January 25, 1950, the case was set for trial for March 6, 1950. The trial began on that date. The process server did not receive the subpoena until March 1, 1950. “Such leisurely activity is not ‘ due diligence. ’ ’ ’ (People v. McDonald, 66 Cal.App.2d 504 , 508 [ 152 P.2d 448 ].) It is negligence, not diligence. The post office was not checked to ascertain if Mrs. Nicholas or Aines had left a forwarding address. The testimony of the process server amounts to no more than that on March 2,1950, (four days before the day of trial) the manager of the bungalow court at 1430% Mieheltorena Street told him that Mrs. Nicholas and a man named Aines had left, she understood, for Arizona. The manager did not tell him that Mrs. Nicholas had said she was going to Arizona. On the day of trial the manager telephoned and told him—not that she had heard from Mrs. Nicholas from Parker, Arizona, but that she had heard from Aines’ first wife who had received a check from Aines from Parker, Arizona. No effort was made to interview Aines’ first wife. The witness was not shown to be absent from the state.

The record in the present case discloses a more incomplete and desultory search for the complainant than that made in People v. McDonald, 66 Cal.App.2d 504 [ 152 P.2d 448 ], where it was said, p. 509: “The provisions of section 686 of the Penal Code . . . contemplate something more than a desultory and indifferent search for a witness. The admission of complainant’s testimony taken at the preliminary hearing, upon a foundation which shows only lack of diligence, constitutes an abuse of discretion on the part of the trial court, which under the circumstances must be held prejudicial.” It appears from the record that the testimony of Mrs. Nicholas was essential to the case of the prosecution and that a conviction could not properly have been obtained without her testimony. It must be held that the court erred in permitting her

In view of the necessity of a new trial, another point made by appellant should be considered. He appears to argue that in order to constitute robbery, the felonious taking must be accomplished by means of fear. The statute says that robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of “force or fear.” (Pen. Code, § 211.) (Italics added.) The felonious taking may be accomplished by means of either force or fear.

The judgment is reversed and the cause remanded for a new trial.

Shinn, P. J., and Wood (Parker), J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied December 26, 1950.