Morine

The first point of appellant’s counsel is stated as follows: “ The District Attorney offered in evidence a deposition, or what purported to be a deposition, consisting of what was claimed to be the testimony of A. J. Pitts, taken before a Justice of the Peace—the committing magistrate. The deposition was not certified by the magistrate as required by § 869 of the Penal Code, nor does it appear to have been taken in the presence of the defendant. The defendant objected to the deposition upon several grounds; among others, that it was not talcen in the presence of the defendant, and that the deposition was not properly authenticated. The objection was overruled, and defendant excepted. The deposition was then read in evidence.”

An examination of the transcript shows that the defendant’s counsel is mistaken in supposing that an objection was taken to thci deposition on the ground that “ it was not taken in the presence of the defendant.” The objection thus construed by counsel was :

This is evidently not an objection that it had not been proved that defendant was present at the examination and when the deposition was taken, but an objection that such a deposition cannot be received…