Ballard

The appellant was convicted in the superior court for San Francisco of the crime of robbery, and has appealed from the judgment thereon and also from an order denying him a new trial.

The prosecuting witness, Thomas Cronan, upon whom the robbery was committed, was not present at the trial, and the district attorney offered to read in evidence the transcript of his testimony given before the police court at the preliminary examination of the defendant; and for the purpose of laying the foundation for reading the same introduced evidence of his absence from the city, and of the efforts to secure his presence at the trial. The defendant objected to the reading of this testimony upon the ground that no subpcena had been issued for his appearance at the trial on that day, and that the prosecution had not used due diligence to find him. The objection was overruled, and the deposition was read in evidence. To this ruling the defendant excepted, and relies upon the error therein in support of his appeal.

The facts upon which the objection was made, as shown in the bill of exceptions, are as follows, viz.: The trial upon the information was originally set down for January 11, 1904, when…