Lyons

Appellant was charged by information with having on or about the fifteenth day of June, 1925, committed the infamous crime against nature as denounced by section 286 of the Penal Code, upon one O’Neil Lee, a male person.

It is admitted that the case was set for trial on March 9, 1926, on which date a jury was impaneled and sworn, and the information was read, and the defendant’s plea of not guilty stated. The usual mid-day recess was then taken, and at 2 o’clock P. M., upon reconvening, the trial court was informed by the district attorney that although a deputy sheriff was provided during the preceding week with a subpoena for all witnesses, he had been unable to serve the prosecuting witness, but that he was advised at Lee’s residence that the latter had gone to Los Angeles and would return to San Diego in time for trial; that during the said recess a telegram had been received which stated, “Do not expect us for some time. O’Neil is ill.” The district attorney stated that a trial of .the case would be impossible without this witness, and assured the court that if a continuance be granted, an officer would at once proceed to Los Angeles and search for the boy. Counsel for the…