Keller

Some time ago an opinion reversing the judgment in this action was filed by us (52 Cal. App. Dec. 641 [ 254 Pac. 580 ]). Thereafter, upon a suggestion of diminution of the record, a petition for rehearing was granted. Upon this hearing we have before us a record very different from that upon which our former opinion was based. Defendant appeals from the judgment.

Appellant was convicted upon a second trial. At the first trial the jury disagreed. The complaining witness was not present at the second trial, but the trial judge, over the objection of appellant, permitted the district attorney to read to the jury his testimony given at the earlier hearing. The objection of appellant was that the prosecution had not shown due diligence in an attempt to produce the absent witness, and the same point is now made here. Section 686 of the Penal Code provides, in part, that a defendant in a criminal action “is entitled: ... to be confronted with the witnesses against him, . . . except that . . . the testimony on behalf of the people ... of a witness . . . who cannot, with due diligence, be found within the state, given on a former trial of the action in the presence of the defendant who…