Paysen

Appellant was tried by a jury and convicted of burglary in the second degree, after having suffered a prior conviction of grand larceny. , A motion for a new trial -was denied and thereafter appellant made a second motion for a new trial, and, that being denied, made application for a writ of coram nolis, which was also denied.

Appellant’s first assignment is that the court erred in receiving in evidence the testimony of the complaining witness given by her at the preliminary examination over the objection that such testimony was hearsay “ ambiguous and unintelligent”, that the defendant was taken by surprise as he had expected the witness to be present in person and that, had he known otherwise, he would have taken her deposition to clear up certain points in the witness’ testimony. Before the testimony of the complaining witness was introduced in evidence the prosecution proved that this witness was outside of the state of California, to wit, in the state of Arizona, and no objection was made that such a foundation for the reading of the testimony had not been laid. The objection that such testimony was hearsay and therefore inadmissible is fully answered by the express…