James L. Gorum v. Walter E. Craven, Warden, Folsom State Prison

The appellee, James L. Gorum, was convicted and sentenced on two counts of armed robbery in violation of the California Penal Code, Section 211 in the Superior Court of the County of Los An-geles.

After having exhausted his state remedies, appellee filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California, which court made and entered an order conditionally granting the petition. The appellant has appealed from this order and we affirm.

The question presented to the District Court and here is whether appellee’s Sixth Amendment rights to confrontation were violated when the testimony of the state’s principal and only witness was introduced as evidence against appellee at trial from the transcript of the preliminary hearing over the objection of his counsel. The District Court held that they were and we agree.

The undisputed facts reveal that just prior to trial on the first day thereof, the prosecution informed counsel for ap-pellee that the victim of the robbery alleged in one count, a Mr. Phillip Smith, was living in New Jersey and would not be available as a witness at the trial. During a conference in chambers,…