Frank

The defendant was convicted upon each of two counts of an information which in the first count charged him with the commission of the crime of burglary with intent to committ larceny and in the second count charged him with the crime of robbery. The court received in evidence the testimony given in January, 1923, at the preliminary examination, by Edwin A. MaePherson and his wife, Ellen MaePherson, to the effect that in their room in the Ambassador Hotel, in the city of Los Angeles, at the time stated in the information, the defendant, in their presence, committed the acts constituting the alleged crimes. Without this evidence it is reasonably certain that the defendant could not have been convicted; with it his guilt is established “beyond a reasonable doubt.’’ He appeals from the judgment and from an order denying his motion for a new trial.

The principal point relied upon in support of the appeal is that the court erred in permitting the depositions of said witnesses to be read in evidence. Counsel for defend ant, in stating his objection that no proper foundation was laid for admission of said depositions, insisted that there was nothing before the court tending to show “that…