Ward

I concur in the judgment upon the last two points discussed in the opinion. As to the first point I express no opinion.

The appellant was convicted of having stolen a cow, and was sentenced to imprisonment in the state prison for the term of two years.

1. At the preliminary examination of the defendant before the committing magistrate one Bane was a witness, and at the trial in the superior court the prosecution, not being able to produce Bane before the jury, offered to read in evidence what was claimed to be a transcript of the testimony given by him at that examination. This transcript was filed with the papers in the case against the defendant that had been sent up by the committing magistrate, and had the following indorsement:

It was shown at the trial that the magistrate had appointed Miss Grooms, a shorthand reporter, to take the testimony at the examination, and she testified that the *656 indorsement had been made by her, and that the document from which they proposed to read had been prepared by her in the case against the defendant before the examining magistrate. The document itself did not, however, have the title of any court or cause in which the testimony was taken, nor the time at which it was taken. The defendant objected to the reading of the proposed testimony, upon the…