People v. Banks

• Decision Date: 20 May 1966
• Docket Number: Cr. 247
• Citation: 242 Cal.App.2d 373,51 Cal.Rptr. 398
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny BANKS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 398

51 Cal.Rptr. 398

242 Cal.App.2d 373

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny BANKS, Defendant and Appellant.

Cr. 247.

District Court of Appeal, Fifth District,

California.

May 20, 1966.

Hearing Denied July 13, 1966.

Roy H. Arnold, under appointment by the District Court of Appeal, Sacramento, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse and David L. Kelly, Deputy Attys. Gen., Sacramento, for respondent.

STONE, Justice.

This is an appeal from a judgment and sentence (Pen.Code, § 1237, subd. 1) of second degree murder, after a trial by jury.

About 5:30 p.m. on July 31, 1964, appellant was sitting on the curb in front of the stairway entrance to a second-floor hotel in the 'West End' of Sacramento. James Ranson, Jr., emerged from the hotel entrance, crossed the sidewalk, and struck appellant on the back of the head with a stick. The stick broke and Ranson turned and ran up the hotel steps, pursued by appellant, knife in hand. At about the fifth stair from the top, appellant turned, ran down the stairs and out into the street. Ranson continued the last four or five stairs to the hotel office, where he fell, nortally wounded. His body bore six laceration wounds, including an incised wound of the heart, the immediate cause of death.

In a pool of blood on the hotel steps, police officers found a Los Angeles bail receipt issued to appellant on July 19, 1964. Also found on the steps was an appointment slip for the Sacramento County Hospital Social Service Division, dated November 15, 1963, bearing appellant's name.

At the preliminary excamination held April 29, 1965, Roy DeWitt testified that on July 31, 1964, he saw Ranson come out of the hotel and strike appellant on the head with a 'stick.' He saw appellant, known to him as 'Gray Eye,' jump up, knife in his hand, and chase Ranson, 'cutting him on the way up the stairs.' Appellant then came back down the stairs with blood on his shirt, and walked away.

The witness DeWitt disappeared before the trial and his testimony was read to the jury. It is significant that appellant's counsel, a member of the public defender's staff, extensively cross-examined the witness DeWitt at the preliminary hearing and that this same attorney represented appellant at the trial.

Appellant testified that he was not in Sacramento on July 31, 1964, but that he had been in Sacramento the night before, July 30. He admitted the bail receipt and hospital appointment slip found on the stairs, were his. He explained their presence on the stairs and in a pool of the victim's blood by the fact that he carried his papers in a brief case which a friend had kept for him at the New Hotel, the scene of the knifing, and apparently when he obtained the brief case from his friend's room and carried it down the stairs his papers must have dropped out on the stairs where they were found after the knifing. Appellant also accused DeWitt of lying at the preliminary examination, and attributed this to a mistaken belief by DeWitt that appellant had informed on him for alleged welfare violations.

Over appellant's objections, the trial court permitted DeWitt's testimony at the preliminary hearing to be read to the jury after finding that the district attorney used due diligence in attempting to locate the missing DeWitt.

Appellant's principal ground of appeal is that the prosecution did not use due diligence to locate and produce the missing witness so that reversible error was committed by the use of his testimony given at the preliminary hearing. If the testimony of a missing witness given on another occasion is to be used by the People, it is the burden of the prosecution to establish that the requirements of Penal Code, section 686, subdivision 3, are met. In the case of a missing witness the prosecution must show by substantial evidence that due diligence was exercised in attempting to locate him. (People v. Carswell, 51 Cal.2d 602, 605, 335 P.2d 99; People v. Horn, 225 Cal.App.2d 1, 4, 36 Cal.Rptr. 898; People v. Harding, 180 Cal.App.2d 152, 155, 4 Cal.Rptr. 120; People v. Ward, 105 Cal. 652, 656, 39 P. 33; People v. Redston, 139 Cal.App.2d 485, 494, 293 P.2d 880.) Whether due diligence has been shown is a question of fact to be determined according to the circumstances of each case. (People v. Horn, supra, 225 Cal.App. at p. 5, 36 Cal.Rptr. 898; People v. Volk, 221 Cal.App.2d 291, 294, 34 Cal.Rptr. 351; People v. Marshall, 184 Cal.App.2d 535, 538, 7 Cal.Rptr. 589.)

Without detailing the efforts of the various law enforcement officers, we note that once the prosecution commenced looking for the missing DeWitt, the record supports the finding of due diligence. Not only was an intensive search made during the ten-day period prior to trial, but the search continued during the trial, including a three-day recess for the 4th of July weekend. Additionally, the court granted a one-day continuance during trial to further the search.

The pivotal question, then, is whether the search was begun within a reasonable time before trial. As to this issue, the evidence discloses that the witness DeWitt disappeared after the preliminary and before trial.

DeWitt, a seasonal field worker, occasionally worked in local car washes, he had resided in Sacramento for a least five and possibly ten years, and was well known in the West End. Although served with subpoena, he was a willing and cooperative witness at the preliminary, voluntarily providing his own transportation to the hearing. According to the testimony of an investigator for the district attorney's office, DeWitt called at the office two or three times after the preliminary hearing to inquire about the case and the trial date. These contacts were made, however, before the trial date had been set. A deputy district attorney testified that after the preliminary hearing he talked with DeWitt, who said he had been friendly toward the deceased and that he was willing to testify against the defendant. The deputy asked him to contact the district attorney's office if he decided to leave the area for any considerable period of time. DeWitt assured him that he was not going anywhere but if he planned to leave the area he would notify the office.

Thus, delay in securing a subpoena to insure DeWitt's attendance at the trial did not, standing alone, show a lack of due diligence in securing his presence as a witness. In view of the evidence, the district attorney had no reason to believe DeWitt would disappear; rather, there was every reason to believe he would be available when needed. The court properly took this circumstance into consideration. (See People v. Horn, supra, 225 Cal.App.2d 1, 8, 36 Cal.Rptr. 898.) Furthermore, it was brought out that DeWitt left the Sacramento area before the trial date was fixed. it appears from the record that DeWitt secreted himself and purposely left no information of any kind as to his destination when he left his usual place of residence. We cannot say the trial court erred in concluding '* * * that every effort has been made to find this man, * * * he's either concealing his whereabouts or he has disappeared or he may even have gone to New York as suggested by the Defendant, and the Court is going to permit the Preliminary transcript to be read.' (See People v. Cavazos, 25 Cal.2d 198, 200--201, 153 P.2d 177; People v. Horn, supra, 225 Cal.App.2d at pp. 6--7, 36 Cal.Rptr. 898.)

Appellant presents the constitutional argument that the application of the Sixth Amendment to the States in the light of Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, makes suspect the provisions of Penal Code, section 686, subdivision 3, insofar as it provides that

'* * * where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question...