People v. McDonald

In a trial before the court, a jury having been waived, appellant was found guilty of first degree robbery; and, appellant having admitted two prior felony convictions, the court adjudged appellant an habitual criminal. The prosecution of appellant was upon an amended information charging the offense of robbery, with two prior convictions of felony. The appeal herein is taken both from the judgment and from the order denying a motion for a new trial. It appears from the record that the testimony of the complaining witness Was essential to the case for the People; and that no conviction could have properly been obtained without such testimony. The complainant was not present at the trial and his testimony given at the preliminary examination was read into evidence over the objection of appellant. Appellant cites the admission of such testimony as error, upon the ground that there was not sufficient foundation for the reading into evidence of the testimony given by the complaining witness at the preliminary examination.

“Q. Did you ever receive a subpoena to notify one, or to serve one Leonard York? A. I did. Q. And when did you receive that subpoena? A. I received that subpoena.in the latter part of October. Q. Of last year ? A. Of last year, yeS, sir. Q. Did you go any place to locate Leonard York? A. Yes, I did. Q. By the way, was there any address on the subpoena showing the residence? A. The only address that I had on the subpoena was that he worked in a Chinese cafe,, and to contact Officer Young. Q. Did it state where the Chinese cafe was? A. No, sir. Q. Did you contact Officer Young? A. I did. Q. That is Officer Young of the Los Angeles Police Department ? A. That is right. Q. After you contacted Officer Young, what next did you do ? A. Officer Young informed me that he had left the Chinese cafe,- and had appeared and was now working at 116 West Fifth Street. Q. Did you go to that place ? A. I did. Q. Did you find a person there by the name of Leonard York? A. At that time he was working there. That was about November 3rd. Q. Did you see him? A. No, sir. Q. Did you speak to anyone about him? A. I spoke to the manager of the cafe there and he said that he come to work at about three in the afternoon and works until eleven. Q. Did he return at any time during those hours? A. I returned the next day and they said he had moved—they had transferred him to 715 South Hill Street. Q. Did you go to that address? A. Not on that day, no sir. Q. When did you go there ? A. I went there about-this notation I am reading from I made at the time of the search. I went there on about the 5th of November. To South Hill Street. Q. What did you learn after you went to that address? A. I learned that he was not working there, he had not come to work that day. Q. Did you receive any information as to his whereabouts ? A. Not at that time, I did not. Q. What next did you do ? A. On the 6th I went back there and they said that he must have left, because he hasn’t returned. I asked them if he was discharged, and they said no. Q. Did you know whether or not there was any money waiting for him at that address, or wages ? . . .

The record reveals that appellant was arraigned on October 7, 1943, and the time to plead was continued to October 11th. On October 11th appellant entered a plea of “Not Guilty”; and the cause was set for trial on December 2d. The process server did not receive the subpoena until the latter part of October. Such leisurely activity is not “due diligence,” in the light of the record of the witness’ testimony at the preliminary hearing.

Between that time and November 3d the process server appears to have done nothing except confer with a Los Angeles police officer as to the whereabouts of complainant. On going to 116 West Fifth Street on November 3d, the process server learned there that the complainant came to work about three in the afternoon and worked until eleven. But the process server appears to have waited until the next day before again going to 116 West Fifth Street; and, moreover, it does not appear from his testimony that at that time he went to that address during the hours complainant was supposed to be working there. Upon this visit, on November 4th, the process server learned that complainant had been transferred to work at 715 South Hill Street, an address some seven or eight blocks from 116 West Fifth Street. Yet the server did not go to 715 South Hill Street until the following day. On November 15th, learning that complainant had an injured side and was a discharged veteran, the process server checked the U. S. Veterans Hospital, but did not check at any other hospital. It was not until December 7th that the process server checked the Lincoln Heights Jail and the Central Police Station. The process server apparently never checked what appeared to have been the haunts of complainant at the time of the alleged robbery. The testimony given by complainant at the preliminary hearing revealed him to be an apparently illiterate man, and probably a transient. In any event, the record of the preliminary hearing was in the nature of a warning, for the testimony of the complainant itself was notice of the uncertainty of such witness’ whereabouts at any time. On January 14, 1944, some three months after first receiving the subpoena to serve, the process server again checked at 715 South Hill Street, but appears to have made no search at all between

For the foregoing reasons, the judgment and the order denying the motion for a new trial are, and each of them is reversed.

York, P. J., and White, J., concurred.