Haeberlin

Defendant John B. Haeberlin III was charged along with his codefendants, Peter Fonda, Stephen Alsberg, and John R. Robischon, with illegal possession of marijuana (Health & Saf. Code, § 11530) on or about June 8,1966. Trial was set for November 3, 1966, but continued to November 29, 1966, upon defendants’ motion that an essential witness was unavailable. The case went to trial before a jury on the latter date. On December 19, 1966, the jury returned verdicts finding defendant Haeberlin guilty, codefendant Alsberg not guilty, and reported inability to reach a verdict as to either of the other two eodefendants, Fonda and Robischon. Imposition of sentence was suspended and Haeberlin was granted probation for a period of four years upon certain stated conditions, one being that he spend the first 90 days in the county jail. He appeals from the order granting probation (judgment and sentence) and is on bail pending disposition of this appeal.

He contends that the prosecution’s use of the testimony of a witness, missing at time of trial, given at the preliminary hearing constituted error because: (1) the witness was not properly sworn at the preliminary hearing, and (2) the People…