Opinion
Rehearing Granted April 1, 1927.
Appeal from Superior Court, San Diego County; L. D. Jennings, Judge.
Agnes Keller was convicted for grand larceny, and she appeals. Reversed.
COUNSEL
Richard Kittrelle, of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and John W. Maltman, Deputy Atty. Gen., and Warner I. Praul, of Los Angeles, for the People.
OPINION
WORKS, P. J.
Defendant was informed against for the crime of grand larceny and was convicted. She appeals from the judgment.
Appellant was convicted upon a second trial. At the first trial the jury disagreed. The complaining witness was not present at the second trial, but the trial judge, over the objection of appellant, permitted the district attorney to read to the jury his testimony given at the earlier hearing. The objection of appellant was that the prosecution had not shown due diligence in an attempt to produce the absent witness, and the same point is now made here. Section 686 of the Penal Code provides, in part, that a defendant in a criminal action
"is entitled: *** to be confronted with the witnesses against him, *** except that *** the testimony on behalf of the people *** of a witness *** who cannot, with due diligence, be found within the state, given on a former trial of the action 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, may be admitted."
On July 6, 1925, appellant entered her plea, and the action was set down for trial on July 22. On August 31, the cause having been tried and the jury having failed to agree upon a verdict, it was set for a second trial on September 15. When that date arrived the complaining witness was not present in court, and on motion of the district attorney the court ordered a bench warrant to issue forthwith for him, and the trial was continued to September 21. On the last-mentioned date a further continuance was granted to September 29, upon motion of the district attorney, supported by affidavit. It is not shown by the record what the affidavit contained or who made it. On September 29 the trial was continued to the next day, but upon what showing or for what reason does not appear from the minutes of the trial court. On September 30 a continuance was again had for one day, no reason being shown for the order. On October 1 the trial was commenced.
Immediately at the close of the district attorney’s opening statement to the jury that officer requested leave to read the testimony of the complaining witness taken at the first trial, whereupon the court asked for a showing of due diligence. The district attorney then put a witness on the stand, who testified that he was a detective sergeant in the San Diego police department; that he had made an investigation to determine whether the complaining witness could be located in the city of Los Angeles; that he went to that city on September 16 for the purpose, but that he began his investigation at a certain hotel in San Diego, where he ascertained from the register that the witness had checked out on the afternoon of September 3 and had left as a forwarding address the name of a certain hotel in Los Angeles; that he, the investigator, then went to Los Angeles, arriving there on the evening of the day he had examined the San Diego hotel register; that he immediately went to the hotel mentioned on the San Diego register and found from it that the prosecuting witness had registered there on the evening of September 3 and had checked out on September 5, leaving no forwarding address; that he remained in Los Angeles four days, being engaged all that time in his investigation; that while he was there he went "to the newspaper offices in Los Angeles" and to the post office, but that he found no trace of the witness in that city except that he got some information, without stating the nature of it or from whom it was obtained, to the effect that the witness might be in Long Beach; that he then went there and "just made a search of the city," for he "had no specific place to go there outside of checking the post office"; that he did not go to the "newspaper offices at Long Beach"; and that he found no forwarding address at the post offices at Long Beach and Los Angeles. This is the only formal showing of due diligence made by the record, but we think we may state some further facts bearing upon the question, because of statements made during a colloquy between the trial judge and counsel, including the counsel for appellant, and assented to by the latter. A subpœ na was issued to the sheriff of San Diego county for the complaining witness, and also to the sheriffs of San Luis Obispo, Santa Barbara, Ventura, Kern, Los Angeles, Riverside, Orange, and Imperial counties, but none of them was served and return was made upon each that the complaining witness could not be found in the county of the officer to whom it was sent. Counsel for appellant stated during the colloquy that:
"No subpœ na was issued in this [San Diego] county until the 15th day of September of this year."
A little later he said, also, that:
"There was no subpœ na issued for the witness until the 15th of September, and the trial was set for the 16th, if I remember rightly."
There was no dissent from the two statements. Each of these remarks was made after the following is shown by the record to have occurred:
"The Court: Have you seen the various returns made by the sheriffs from the southern part of the state?
"Mr. Wright (counsel for appellant): I have not, your honor. [The Court hands papers to Mr. Wright.]"
We think this chain of circumstances amounts to nothing more than a stipulation that no subpœ nas were issued to any sheriff before September 15, the very day for which the second trial of the action was first set, as appellant’s counsel was in error in his recollection that the trial date was the 16th. A statement of the district attorney showed that the return of the sheriff of San Diego county was made on October 1, the day the trial actually commenced. There was no showing as to when the return of any of the other sheriffs was made.
The most striking feature involved in this showing appears at the very outset, in point of time. On August 31 the action was set down for a second trial on September 15, but in the interim no subpœ na for the complaining witness was issued, not even one for service in the county in which the cause was pending. There may be instances in criminal cases in which such a course would be proper, although we do not decide that it ever would be. It is possible that, under special circumstances, a district attorney might be justified in concluding from a private understanding with a witness that he would be present at a trial, and still be able, without ever having issued a subpœ na for the witness, to make a showing of due diligence if he should fail to appear. There was no showing here, however, of any such understanding. We have the bare facts that the trial was set 15 days away and that during that time absolutely nothing was done to insure the attendance of the most important witness for the prosecution. Moreover, if an attempt had been made to serve a subpœ na upon the witness 12 days before the date set for the trial, he could have been located at a hotel in San Diego. Ten days before the day set he could have been served at a hotel in Los Angeles. These facts appear from the testimony of the investigator, who was the only witness offered to show due diligence.
If any escape from this chain of circumstances is possible, there is more to follow. When September 15 was reached, the district attorney secured a continuance of the trial because of the absence of the prosecuting witness, and a bench warrant was issued for his apprehension. There was no showing as to what was done under this process, nor was it proved what, if anything, was ascertained concerning the whereabouts of the absentee, in an attempt to serve it. On September 16, the next day after that on which the trial should have been commenced, the investigator began a belated search for the witness. The testimony read to the jury showed that the witness was a newspaper reporter by occupation, and that at the time of the first trial, which had occurred as late as July or August, he was employed by a certain San Diego newspaper, and that he had been with the publication for three years. It was not shown that the investigator, or any one else, ever visited the office of the newspaper for the purpose of ascertaining whether the witness had resigned from his position or had been discharged, and, if either, where he had gone; or whether he still retained the position and was away temporarily on vacation or otherwise. The investigator did go to "the newspapers" in Los Angeles, but after he got from some person whose identity is not disclosed some information, the character of which is not divulged, that the witness might be in Long Beach, he failed to visit the offices of the newspapers there. He knew, so he said, of no place to go except to the post office. After four days of ceaseless search-the efforts actually expended in making it are meagerly stated in the record-the investigator returned to San Diego. This was about September 20. From that time until October 1, when the trial actually commenced, nothing was done by the district attorney’s office to locate the complaining witness except to await returns upon the subpœ nas which had been issued, not earlier than September 15, to the sheriffs of nine of the counties of Southern California, including San Diego. It has been decided in many cases that when there is evidence that an absent witness has actually left the state, due diligence in attempting to locate him within the state requires what would be but a perfunctory search under other circumstances. There was, however, no such evidence here. The search in the present instance was not what it should have been, and, above and beyond all, it was commenced too late. There was a lack of due diligence, and the trial judge abused the discretion reposed in him by permitting the district attorney to read to the jury the former testimony of the witness. Some of the points presented by this appeal were considered in People v. Hayes, 72 Cal.App. 292, 237 P. 390, where many cases on the subject are cited.
Questions under section 686 of the Penal Code arise too frequently in the courts of review of the state. The right of a defendant in a criminal case to be confronted by the witnesses against him is a most valuable one. Indeed, in some states, although not here, it is guaranteed by direct constitutional provision. The right, as secured by the statute in this state, is stated in broad and general language. Exceptions, under certain special circumstances, are allowed by the statute, and the burden, of course, is upon the prosecution in each instance to show that the exception and not the rule prevails. It is to be feared that this burden often is too lightly assumed by district attorneys. It will not do to count too much upon the fact that the determination whether an exception to the general rule exists is confided to the discretion of trial courts. It is true that in a vast majority of the cases the courts of review have upheld the exercise of discretion permitting the reading of former testimony, but their work has been increased by the mere presentation of the question with such frequency. When a criminal case is set for trial one of the first, as well as one of the most important, duties of the district attorney is to assemble the witnesses for the prosecution. If this duty is strictly regarded in every case, a right of defendants which is sometimes lost will sometimes be saved, and the labors of courts of appeal will be lessened. If a witness is not then found, due diligence easily can be shown.
Appellant presents other points, but it is not necessary to consider them.
Section 4½ of article 6 of the Constitution does not save the situation here presented. There has been a miscarriage of justice in the case. In truth, with the former testimony of the complaining witness out of the record, no case remains.
Judgment reversed.
We concur: CRAIG, J.; THOMPSON, J.