Turner

The defendant stands convicted of the larceny of fifty dollars from the person of one Smith. The evidence tended to disclose something very much in the nature of a highway robbery. The defendant appeals from the judgment, and from an order denying him a new trial, and his principal contention is, that the court erred in permitting the prosecution to prove certain hearsay statements identifying defendant as having taken part in the larceny charged. The question arises this way: The conviction of defendant depends almost altogether upon the testimony of the complaining witness Smith, he being the only witness who identified the defendant as assisting in the robbery. To impeach and weaken the force of Smith’s testimony in this regard, the defendant called the city marshal of Bakersfield, Ed Tibbet, who testified that about two hours after the alleged larceny Smith had, in substance, declared that he could not identify any of the parties that robbed him. The defense also called a brother of Ed, Bert Tibbet, who testified that in the evening of the same day of the robbery, or larceny, Smith had expressed himself as unable to identify the defendant as being concerned in the robbery.…