Opinion
Appeal from a judgment of the Superior Court of San Bernardino County, and from an order refusing a new trial.
COUNSEL:
Zue G. Peck, and Baker & Blair, for Appellant.
Attorney-General Johnson, for Respondent.
JUDGES: In Bank. McKinstry, J. Searls, C. J., Sharpstein, J., McFarland, J., Paterson, J., and Thornton, J., concurred.
OPINION
McKINSTRY, Judge
[16 P. 545] The defendant was convicted of robbery in San Bernardino County, and has appealed from the judgment, and from an order denying a new trial.
It is contended the motion in arrest of judgment should have been granted, because the information does not aver that the one hundred and sixty dollars, lawful money of the United States, "said money being then and there the property of one Christian Meyer," was "personal" property. The point is not well taken.
The information charges that the defendants, on a day named, etc., did "unlawfully, willfully, and feloniously, and by means of fraud and force, take from the person, possession," etc. It is claimed the judgment should have been arrested, because the information is fatally defective, in that it omits the statutory words, "and against his will." (Pen. Code, sec. 211.) But the information is sufficient. (Pen. Code, sec. 960.) A robbery "accomplished by means of force and fear" must have been accomplished "against the will" of the person robbed. It is urged as error that the court below charged: "Identity of person is presumed from identity of name." Identity of person is a deduction which the law expressly directs shall be made from identity of name (Code Civ. Proc., secs. 1959, 1963, subd. 25); and while under our constitution, which prohibits the courts from charging upon matter of fact, a court cannot instruct a jury that any fact is an "inference" from another fact, -- as an inference is defined by section 1960 of the Code of Civil Procedure, -- the court is authorized to declare a presumption of law. It is true that the presumption of identity of person from identity of name is a disputable presumption, which may be controverted by other evidence. (Code Civ. Proc., sec. 1963.) But the defendant introduced no evidence to overcome it, and no injury could have accrued to him by the omission of the court to add that identity of name only created the presumption prima facie .
At the trial the prosecution offered in evidence the deposition of Christian Meyer (prosecuting witness), taken at the examination before the committing magistrate. The deposition was admitted over the objections of the defendant.
To the deposition the defendant objected that it does not show the "grounds or reasons" on which the magistrate sustained an objection to a question put to the witness on cross-examination. But the objection to the question was that it was "irrelevant and immaterial," and the objection as made was sustained. It would be difficult to state more clearly "the ground on which the question was overruled." (Pen. Code, sec. 869, subd. 3.) As to the alleged refusal of the witness to answer questions, the magistrate, in one instance directed him to answer, and in others the recalcitration of the witness was waived. Besides, the "ground" on which the witness declined to answer questions does appear in the deposition, from the statement of the witness itself. Appellant further objects that it was not made affirmatively to appear that Joseph E. Rich, whose certificate as stenographer is attached to the deposition, was sworn faithfully to discharge his duty. The defendant proved by Rich that he was appointed to take the testimony by the magistrate. The statute neither requires that the short-hand reporter shall be sworn, nor that the fact that he was sworn shall appear in the deposition; and the testimony, as written out in long-hand by the short-hand reporter, is only evidence [16 P. 546] prima facie of its correctness. (Pen. Code, sec. 869.)
The deposition is certified:
" State of California, county of San Bernardino.
" I hereby certify the foregoing to be a correct transcript of the examination in the above-entitled case.
" Joseph E. Rich, Stenographer."
(Signed)
The statute provides: "When written out in long-hand and certified as being a correct statement of such testimony and proceedings in the case, shall be prima facie evidence," etc. (Pen. Code, sec. 869, subd. 5.) It is, of course, always better to follow the language of the statute, but we think the certificate substantially complies with the law. In People v. Morine , 54 Cal. 575, -- referred to by counsel, -- there was no certificate.
Defendant also objected to the deposition on the ground that the preliminary evidence was not sufficient to show that the witness, Christian Meyer, was either dead, insane, or absent from the state.
Subpoenas were sent to different counties for service. One Neil, an acquaintance of Meyer, gave information that he was at a certain place in San Diego County, but he could not be found there. There was evidence that he had been sought for "pretty much all over" San Bernardino and San Diego counties; that inquiries had been made for him in Sacramento, San Francisco, Stockton, San Jose, Lathrop, Woodland, Oakland, and "at all those places along the line of the Southern Pacific railroad." There was no direct evidence that he was in the state, nor any evidence that facts had come to the knowledge of the prosecution tending to prove the whereabouts of the witness which had not been acted upon in good faith, or evidence indicating that the witness had gone to any county to which subpoena was not sent for service. The court was fully justified in finding that the witness could not, with due diligence, be found within the state, and as an inference, that he was not in the state. (People v. Gannon , 61 Cal. 476.)
Judgment and order affirmed.