Day

This is an appeal from a judgment of conviction and from an order denying a motion for a new trial in an action charging the defendant with the offense of contributing to the delinquency of a minor.

The principal point argued as .a ground of reversal is the alleged error of the trial court in admitting in evidence, in the absence of the prosecuting witness, the testimony of said witness taken at the preliminary examination.

The action was twice tried. A judgment of conviction following the first trial was reversed for reasons not involved in the present appeal. (See People v. Day, 125 Cal. App 106 [ 13 Pac. (2d) 855 ].) On September 8, 1932, the court made an order resetting the cause for trial on Friday, October 14, 1932. On September 12, 1932, the prosecuting witness was personally served with a subpoena to appear at the trial to be commenced on October 14th. On the day last mentioned, after the jury had been sworn to try the cause, it appeared that the prosecuting witness was not present; whereupon the prosecution offered to read in evidence the testimony of the prosecuting witness taken at the preliminary examination of the defendant. To this offer the defendant objected on…