James

The two defendants were tried jointly before a jury on an information charging robbery. The verdict was guilty of robbery in the second degree. From the judgment following the verdict and from the order denying their motion for a new trial both defendants have appealed upon a single typewritten record.

The appellants raise two points—the discretion of the trial court in permitting the district attorney to read to the jury testimony of the complaining witness given upon the preliminary hearing, and misconduct of the district attorney in his argument to the jury.

The testimony was read under permission of section 686 of the Penal Code after the prosecution had satisfied the trial court that the complaining witness could not be found within the state. Evidence was received showing that a subpoena had been issued and that a police officer had made diligent search for him at his place of business and at his place of residence; that the officer had made inquiries and learned that the witness had sold his business and given up his residence ; that further search and inquiry failed to produce any information as to where he could be found. Upon this evidence the trial court found that…