Appeal from a judgment of conviction in the Superior Court of Stanislaus County. Hewell, J.

         The following statement appears in the bill of exceptions: " Frank Repose, called as a witness for the prosecution, testified in substance: 'I know Imerson Luke; I know that he is dead; I was there when he got shot.' The District Attorney then said: 'I now offer in evidence the testimony of Imerson Luke, given in the previous trial and certified to by the reporter.' The defense objected to said evidence upon the ground, among others, 'that it is not proven nor shown that the offense for which the defendant was on trial at the time the testimony was taken was the same, or substantially the same, as that for which the defendant is now on trial.' The prosecution then called C. A. Sumner (official short-hand reporter of the Court), as a witness for the prosecution, to show the identity of the offenses, who testified in substance as follows: I remember the trial of the case of The People v. M. Qurise in this Court in June last. That is the testimony of Imerson Luke on that trial. (Refers to the transcript offered in evidence.) That is all the testimony, direct and cross-examination. The defendant was on trial upon an information similar to that--don't know that that is the information (referring to information shown to witness). The information was then submitted to the Court. It charged the defendant with larceny and embezzlement of a horse, saddle, and bridle from I. Luke, the property of said Luke, in the County of Stanislaus, on the twenty-fourth of November, 1879. The Court then overruled the objection and allowed the testimony, to which ruling then and there the defendant duly excepted, and the District Attorney proceeded to read the same, which is in substance as follows." (Here follows the testimony of Imerson Luke.)

         COUNSEL

         No sufficient foundation was laid for the admission of Luke's deposition.