Opinion
Hearing Granted by Supreme Court April 27, 1933.
Appeal from Superior Court, Los Angeles County; B. Rey Schauer, Judge.
Olive Clark Day was convicted of contributing to the delinquency of a minor, and she appeals.
Reversed.
See, also, 13 P.2d 855. COUNSEL
Lorrin Andrews and Edward Moran, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and William F. Cleary, Deputy Atty. Gen., for the People.
OPINION
HOUSER, Justice.
This appeal is from a judgment rendered in pursuance of a verdict of "guilty" of the offense of contributing to the delinquency of a minor, and from an order by which the motion of defendant for a new trial was denied.
The principal point presented by appellant as a reason for the reversal of the judgment and the order relates to an alleged error committed by the trial court in that by its order, over the objection of defendant, in the absence of the prosecuting witness from the trial, the testimony given by said witness at the preliminary examination before the committing magistrate was permitted to be read in evidence.
Section 686 of the Penal Code is the source of authority relied upon for the ruling made by the trial court. As far as is here material, in effect the provision is that when it has been "satisfactorily shown to the court" that a witness who testified at the preliminary examination of the defendant "cannot with due diligence be found within the state, * * * the deposition of such witness may be read."
In order that a better understanding may be had of the situation with which the trial court was confronted, it becomes necessary to narrate some of the history of the case:
The action against defendant has been twice tried. At the first trial, although the prosecuting witness had been regularly subpœ naed by the prosecution to appear as a witness, she failed to be present or to testify at said time. On it being "satisfactorily shown to the court" that theretofore the witness had repeatedly declared that she would not testify on the trial of the action; that her husband would divorce her if she did become a witness in the case; and that deliberately, and solely for the purpose of preventing her testimony from being taken, she intentionally had left the jurisdiction of the court, the deposition which she had given at the preliminary examination of defendant was permitted to be read in evidence. At the same time evidence was introduced from which it was made to appear that theretofore, on the trial of another action in which the evidence therein adduced was closely related to that in the instant action, and in which other action the prosecuting witness was the prosecuting witness herein, on the advice of counsel the said witness refused to testify on the ground that her testimony was privileged, etc.
Preceding the second trial of the instant action, to wit, on September 8, 1932, by order made by the superior court, the cause was set for trial on the 14th day of October of the same year. At the time said order was made, in open court counsel for defendant made the statement that he had been informed by a representative of the office of the district attorney that the prosecuting witness was then within the jurisdiction of the court; that "in view of all the testimony which had been produced in the former case" counsel for defendant "was satisfied she would make another attempt to escape from the jurisdiction"; that counsel for defendant "considered it would be unfair to the defendant" if the prosecuting witness "disappeared again," and that the prosecution should thereupon "read the transcript" of the testimony given by the prosecuting witness at the said preliminary examination of defendant; and in effect suggested the propriety of the district attorney instituting the proceedings provided by sections 879, 881, and 882 of the Penal Code, which relate to the security to be given for the appearance of a witness, his commitment to jail on his refusal to give such security, or his "conditional examination" as a witness. The evidence further shows that four days after the date when the cause had been set for trial, to wit, on September 12th, the prosecuting witness was actually served with a subpœ na to appear at the trial to be commenced on October 14th; that on September 27th, as related by "a member of the detective department of the district attorney’s office," the following conversation occurred between the said detective and the prosecuting witness, to wit: "I asked her if she was ready to come into court and testify in this case, and she said yes, she guessed she was. And I asked her if there would be any doubt about her being here, and she said no, that she would be here, and I said, ‘Of course, you know you have been subpœ naed, and you are expected to be there in court,’ and she said, ‘Yes, I realize that.’ "
At a time three days before the trial was scheduled to commence, to wit, on October 11, 1932, the deputy district attorney in charge of the prosecution, received from the prosecuting witness a letter of date October 10th, a copy of which being as follows: "I am writing to remind you that some months ago my husband told you that he did not wish me to testify or have any more publicity in connection with the case. I want you to understand that I absolutely will not go on the stand and be forced by you to testify regarding facts which will further degrade my character. I have also written the judge and explained to him why I do not wish to testify in this case."
On the same day, the judge of the superior court before whom the first trial of defendant had taken place, also received a letter from the prosecuting witness of which the following is a copy: "I am writing this letter to tell you that I am going away and will not be able to appear in court to testify in the Olive Clark Day case. The reason for this, as I have told the District Attorney’s office before, is because I have now been married for over a year and am trying to live a clean and decent life. I do not intend to be forced into making statements which the District Attorney’s office have insisted that I make, because I do not wish any publicity that would further degrade my character."
As hereinbefore has been stated, the cause was set for trial on October 14th, which fell on a Friday. Notwithstanding full knowledge of all the foregoing facts by the district attorney, other than the service upon her of a subpœ na directing her to attend the trial of the action, and having the conversation to which reference has been had, nothing was done by the district attorney either in the way of compelling the prosecuting witness to give bond for her appearance as a witness, or, on her refusal to give such bond, her commitment to jail, or "the conditional examination" of the prosecuting witness in accordance with the provisions of the statutes to which reference hereinbefore has been had.
On Friday, the 14th day of October, after a jury had been sworn to try the cause, and it then and there appearing that the prosecuting witness was not in attendance at the trial, the prosecution offered to read in evidence the deposition of the prosecuting witness given by her at the preliminary examination of defendant, to which offer defendant objected on the ground that the statutory requirement of "due diligence" had not been shown. At the request of the deputy district attorney in charge of the prosecution, by order of the trial judge a bench warrant was then issued for the arrest of the missing witness. Before reaching a decision with reference to the question of the admissibility of such proffered evidence, an adjournment of the trial was ordered until the following Monday morning, at which latter date testimony was received by the trial court to the effect that following said adjournment of court, to wit, on the preceding Saturday, inquiries regarding the whereabouts of the prosecuting witness had been made by representatives of the office of the district attorney, both at Long Beach, which was her place of residence, and at San Diego, at which place each of the letters respectively to which reference hereinbefore has been had apparently had been written and mailed; and from such inquiries it appeared that the husband of the prosecuting witness, who was an enlisted man in the United States navy, had secured a 30-day furlough; that about one week before the date when the action was set for trial he and the prosecuting witness had left their place of residence in Long Beach, had taken their radio and automobile with them, and had left no forwarding address; also that inquiries had been made at dance halls in the city of San Diego, which were frequented by sailors, and that no trace of them was found. Furthermore, that inquiries were also made at the United States postoffice at San Diego and no clue as to their whereabouts was learned. It also appears that information regarding the whereabouts of the prosecuting witness was casually sought from the respective headquarters of the police and at the postoffice in each of the cities of Long Beach and San Diego; also at the office of the sheriff of the county of Los Angeles.
In addition to the foregoing, and forming a part of the evidence submitted to the trial court on the question of the admissibility of the testimony given by the prosecuting witness at the preliminary examination of defendant, it should be noted that immediately preceding the date when the prosecuting witness gave such testimony, by order of the district attorney and by his detectives or "investigators," she had been detained as a witness and continuously held "incommunicado" for a period of five months in a hotel in the city of Los Angeles.
It may be assumed that ordinarily a determination of the question of whether a witness "cannot with due diligence be found within the state" rests within the discretion of the trial court. 8 Cal.Jur. 131; 1928 Supp. to Cal.Jur. 608; People v. Hayes, 72 Cal.App. 292, 305, 237 P. 390, and authorities there cited. It also may be conceded that solely for the purpose of procuring the attendance of the witness at the trial of the action, the service of a subpœ na upon the witness on September 12th, which was about one month prior to the date when the action was set for trial, together with the fact that at a later date, to wit, on September 27th, the witness at least tentatively assured the representative of the district attorney’s office that she expected to be present at the trial and thereat to testify as a witness, constituted some evidence of good faith, if not of diligence. In the case of People v. Flannery, 3 Cal.App. 41, 84 P. 461, it is held: "The fact that the prosecution, at the time of the examination, knew the witness would be absent at the time of the trial, and failed to request the magistrate to order him to be put under bonds to secure his appearance, * * * was not a failure to exercise ‘due diligence’ to produce the witness, and does not render his deposition inadmissible at the trial." But that is not the question here under consideration. The question here involved is whether the other acts, inquiries, or investigations of the district attorney, not commenced until the day after the trial of the action had actually begun, were such as to show that "due diligence" was exercised by the district attorney in his attempt to ascertain whether the witness could be found "within the state."
As hereinbefore has been stated, on September 12th, which was about one month preceding the date set for the commencement of the trial, the witness actually was served with a subpœna, and later, to wit, on September 27th, which date preceded the trial date by seventeen days, as appeared from the testimony of the "investigators" who interviewed the witness, she still was "found" within the state; also, by still later evidence it was shown that as late as one week before the date of the trial she was residing at Long Beach; and finally, the two letters to which attention has been directed indicate that four days preceding the date when the trial was commenced the witness was in San Diego. But each and all of those facts constituted evidence of her presence within the state, and not either that she was without the state, or that she could not "with due diligence be found within the state." So that, as far as the real question here under consideration is concerned, far from establishing the point that the witness could not be found within the state, the evidence tends to prove quite to the contrary. On the other hand, considering the area and the population of the state, and in that connection, the possibilities in general, the efforts put forth by the district attorney on the day following the commencement of the trial, as hereinbefore set forth, were rather indifferent. Inquiries were made of the "landlady" of the witness, of some person who lived "next door," at the postoffice, and at police headquarters in each of the cities of Long Beach and San Diego, at the office of the sheriff, and finally on board a boat to which the husband of the witness was attached as an enlisted man, where it was learned that he was away on vacation. Giving due consideration to such evidence, when measured by the judicial standard adopted in the authorities to which reference is had in the cited case of People v. Hayes, 72 Cal.App. 292, 305, et seq., 237 P. 390, it will be found far short of the legal requirements. Therein, as compared to the efforts which were made in the instant case, a search covering a much longer period of time, greater effort, and in many ways much more intensive work along many different lines of investigations of various possibilities was made, and it was held that in admitting in evidence the testimony given by a witness at the preliminary examination of the defendant, the trial court had abused its discretion. To similar effect, where like conditions prevailed, see People v. Ballard, 1 Cal.App. 222, 81 P. 1040.
Considering the facts that for a period of more than five months preceding the giving of her testimony at the preliminary examination of defendant, by order of the district attorney, without placing the prosecuting witness under legal arrest, she had been detained and held "incommunicado"; that thereafter in a related action she availed herself of the privilege of refusing to testify; that on the former trial of the instant case, for the avowed purpose of escaping the responsibility of giving her testimony personally, she had fled the jurisdiction; and that four days preceding the date of the trial herein she had expressly, in writing and in unmistakable terms, notified the district attorney that she would not be present at the trial, or "be forced into making statements which the district attorney’s office have insisted that I make * * *" --without herein repeating the several points regarding which appellant asserts that she desired to inquire personally of the witness, the reason is apparent why the attorney who represented defendant so vigorously resisted the reading of the deposition of the prosecuting witness taken on the preliminary examination of defendant.
In the circumstances, it would seem but a travesty to claim or to seriously represent that the rights of defendant "to be confronted with the witnesses against him," as provided by section 686 of the Penal Code, had been secured to her. The correlative of that right afforded the prosecution, and which necessarily is a limitation upon the right of the defendant, if not in derogation thereof, to wit, to read his "deposition" taken at the preliminary examination of the defendant "upon its being satisfactorily shown to the court that he * * * cannot with due diligence be found within the state," should admit of no perfunctory search. If not exhaustive, at least it should be timely made and with that thoroughness which the situation regarding the possible effects upon the life or the liberty of the defendant demands, as otherwise the practical result of a careless or incomplete search may be tantamount to a denial of the right vouchsafed to defendant by the provisions of the statute and virtually amount to its abrogation.
Ordinarily it well might be that an error such as appears to have been committed in the instant case would not be of such importance to a defendant that it would necessarily result in a prejudice to his substantial rights in the premises; but in the instant case the testimony given by the prosecuting witness was the only evidence offered by the prosecution in proof of the guilt of defendant. Necessarily, upon the testimony of the prosecuting witness the verdict entirely depended; but since the proper foundation for the admission of such testimony was lacking, it follows that the judgment and the order by which the motion for a new trial was denied should be reversed. It is so ordered.
We concur: CONREY, P. J.; YORK, J.