Opinion
Argued March 19, 1917
Decided March 27, 1917
Edward Swann, District Attorney ( Robert S. Johnstone of counsel), for appellant.
Louis Spiegel and Frank Hendrick for respondent.
The judgment and order of the Appellate Division should be reversed and the judgment of the Court of General Sessions affirmed.
Held, 1. The trial court having found upon sufficient evidence that it was satisfactorily shown that the witness whose deposition was received in evidence against the defendant could not with due diligence be found within the state that question may not be reviewed here.
2. The deposition was properly authenticated. An official stenographer had been appointed by the magistrate before whom the preliminary examination was taken under proper provision of law therefor and stenographic minutes of the proceedings and of the examination and depositions of witnesses and statements of the defendant, if any, had been taken by such stenographer. Such minutes were properly certified by the stenographer and by the magistrate who held such examination. (Code Crim. Procedure, § 221b.)
3. The deposition was properly received in evidence. It was taken on the preliminary examination before the magistrate. The defendant was present and had an opportunity to cross-examine witnesses. The deposition gave the history of one continuous transaction, beginning in a saloon between 9:30 and 10:00 P.M. on January 4th and ending about 12:30 A.M. on the morning of January 5th. It stated the circumstances under which the crime of which the defendant was convicted was committed and for which he was indicted. It related to one — not to two independent crimes.
4. There are no exceptions in the case requiring a reversal of the judgment of conviction by the Appellate Division.
The judgment of the Appellate Division should be reversed and the judgment of the General Sessions affirmed.
CHASE, COLLIN, HOGAN, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgment reversed, etc.