People v. Horn

• Citation: 36 Cal.Rptr. 898,225 Cal.App.2d 1
• Decision Date: 18 February 1964
• Docket Number: Cr. 88
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Edward HORN, Defendant and Appellant.

Page 898

36 Cal.Rptr. 898

225 Cal.App.2d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Edward HORN, Defendant and Appellant.

Cr. 88.

District Court of Appeal, Fifth District, California.

Feb. 18, 1964.

Jay W. Powell, Fresno, for appellant.

Stanley Mosk, Atty. Gen., Raymond M. Momboisse, Daniel J. Kremer, Deputy Attys. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

The defendant, James Edward Horn, appeals from convictions on three counts of forgery. The evidence shows that the defendant and James Stanley Mallow, jointly charged with him in the information, and Aubrey Lloyd ('Skeeter') Johnson, entered into a conspiracy to forge and cash ten checks, the forms of which had been stolen from the B & R Casing Company. The jury's verdict with respect to the three checks actually forged and uttered is amply supported by the evidence.

There is only one point raised on the appeal--that the court erred in admitting over objection the recorded testimony of the above named Johnson given at the preliminary hearing. He did not appear as a witness at the trial, and the District Attorney attempted to lay the essential foundation for the admission of the testimony given by him at the preliminary examination. After a full presentation of the attempt to subpoena Johnson, the court announced that it was of the opinion that due diligence had been exercised by the District Attorney within the meaning of subdivision of 3 of Section 686 of the Penal Code, and the former testimony of Johnson given at the preliminary hearing was thereupon received in evidence. Without this testimony, the record would not justify the conviction. Johnson, of course, was an accomplice; there is ample corroboration of his testimony, but his evidence is the central and essential factor that makes crystal clear the participation of James Edward Horn as a principal in the criminal activity. This fact stresses the importance of the court's ruling admitting his testimony. For if the court's ruling was wrong, then clearly it constituted prejudicial error and would require a reversal.

Penal Code, Section 686 provides in part as follows:

'In a criminal action the defendant is entitled:

'1 * * *

'2 * * *

'3 * * * to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has * * * cross-examined or had an opportunity to cross-examine the witness; * * * the deposition of such witness may be read, upon its being satisfactorily shown to the court that he * * * can not with due diligence be found within the state; * * *.'

If there is satisfactory evidence that the missing witness is not within the state or deceased, no further preliminary showing is necessary to justify a ruling that the recorded evidence given at the preliminary examination is admissible; (People v. Carswell, 51 Cal.2d 602, 605, 335 P.2d 99), but if neither one of these eventualities can be shown, it is necessary for the prosectuion to prove 'due diligence' in its attempt to produce the missing witness at the trial as a preliminary condition to the reading of his testimony.

The district attorney has the burden of proof; as is stated in People v. Ward, 105 Cal. 652, 656, 39 P. 33:

'The right of the defendant in criminal prosecution to be confronted with the witnesses against him, in the presence of the court, is one of the fundamental principles of the common law, and can be taken from him only by the provisions of some express statute. 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 whenever the state in its prosecution for a crime, would offer against the accused the testimony of witnesses, not given in the presence of the court, it must point to a statute which authorizes such procedure, and bring itself clearly within the provisions of that statute.'

In People v. Harding, 180 Cal.App.2d 152, 155, 4 Cal.Rptr. 120, 122, it is said:

'* * * the burden is on the prosecution to show due diligence in finding a missing witness in this state before the previously recorded testimony of such witness may be read in evidence.'

Appellant discusses at length in his briefs the question of what constitutes due diligence within the meaning of the California Penal Code, quoting from the opinion in People v. Redston, 139 Cal.App.2d 485, 494, 293 P.2d 880, 886, as follows:

'To say that a witness has not been found is not the same as swearing that he cannot, with due diligence, be found within the state. The word 'diligence' connotes persevering application, untiring efforts in good earnest. There must be evidence of a substantial character to support the conclusion of due diligence.'

In People v. Cavazos, 25 Cal.2d 198, 200-201, 153 P.2d 177, 178, the Supreme Court states that:

'The question of what constitutes due diligence to secure the presence of a witness which will authorize the reading to the jury of testimony taken at the preliminary hearing of the case is largely within the discretion of the trial court, and depends upon the facts of each particular case. The decision of a trial judge on the question of diligence and of the propriety of receiving or rejecting the evidence will not be disturbed on appeal unless it appears that there was an abuse of discretion. [Citations.] The problem is primarily for the trial court, and its solution will not be disturbed if there is evidence of substantial character to support its conclusion. [Citations.]'

The term 'due diligence' is incapable of a definition so mechanical and precise as to constitute a rule of thumb. In passing upon the admissibility of the evidence, the trial court must determine whether the alertness and activity of the prosecuting official in attempting to secure the presence of the missing witness lead fairly to the conclusion that he has shown such a sincere and reasonable diligence as to warrant the application of the rule permitting a substitution of the recorded testimony of the witness for his evidence in person. (People v. Volk, 221 Cal.App.2d 291, 34 Cal.Rptr. 351; People v. Johnson, 13 Cal.App. 776, 779, 110 P. 965; People v. Land, 137 Cal.App. 196, 198, 30 P.2d 433; People v. McFadden, 192 Cal.App.2d 212, 215, 13 Cal.Rptr. 129; People v. Crumbley, 204 Cal.App.2d 591, 596, 22 Cal.Rptr. 369.)

The trial judge did not make his ruling out of hand but after a complete presentation of the facts surrounding the attempt to secure the presence of the missing witness. His discretion was exercised only after hearing extensive argument and evidence on the question; the court then stated:

'I have found that due diligence to locate the witness has been exercised by the District Attorney's office and that the evidence presented by the District Attorney's office further indicates that further diligence would not have resulted in any discovery of this witness who apparently is not making himself available.'

Incidentally, the trial court adhered to this view in later denying appellant's motion for a new trial.

The evidence on the question may be summarized as follows:

1. A subpoena for Aubrey Lloyd Johnson was received by the Fresno County Sheriff's Office on May 9;

2. Sergeant Bailey of the Fresno Sheriff's Office checked the address given on the subpoena--Central and Orange, Fresno; information received there indicated that Johnson had left the State;

3. The local telephone directory and the local city directory were checked with negative results;

4. Johnson's probation officer, Mr. Newell, was contacted on May 10; he...