Opinion
Appeal from a judgment for the plaintiff, in the Superior Court of Kern County. Brundage, J.
COUNSEL:
Thomas Rhodes, and N. A. Gregg, for Appellant.
Attorney-General, for Respondent.
OPINION
In Bank.
By the Court, (from the bench):
At the trial the District Attorney offered the deposition of Frank Drake. The Court inquired of the under-sheriff present what was " the condition" of Drake? The officer replied: " He is unwell; not able to leave his room, I don't think," and added that he had been in that condition for almost two weeks. Thereupon the Court permitted the deposition to be read.
The deposition, as is stated in the bill of exceptions, was the " testimony" of the witness Drake, taken down by the Justice of the Peace, on the preliminary examination of defendant under the charge in the indictment.
The defendant objected to the introduction of the " testimony" as being incompetent, irrelevant, and immaterial. The objection was overruled, and exception noted.
The Penal Code, § 686, permits such a deposition to be read at the trial only in certain cases, no one of which is, that the witness, although within reach of process of subpoena, is too unwell to appear before the jury. The deposition was, therefore, incompetent, and as the deposition contained the testimony, the latter also was incompetent.
We think it would be hypercritical to hold that the language employed by defendant's counsel in making his objection did not sufficiently point to the proposition, that the deposition was inadmissible, because the absence of the witness was not accounted for in such manner as would alone render the deposition competent.
Judgment reversed, and cause remanded for a new trial.