Reilly

The defendant was convicted of the crime of robbery, and sentenced to be imprisoned in the state prison for the term of twenty years. He appeals from the judgment and from an order denying his motion for a new trial.

The only point made for reversal is that the court below erred in permitting the deposition of John O’Brien, taken at the preliminary examination of defendant, to be read in evidence.

O’Brien was the prosecuting witness, and, when his deposition was offered, counsel for defendant objected that it was inadmissible under section 686 of the Penal Code; and, again, that it was incompetent and inadmissible, and that no foundation had been laid for its introduction. The objection was overruled and an exception reserved.

1. It is urged here that no foundation for the introduction of the deposition was laid, because “ no showing was made that the purported deposition ever was filed in the superior court, or with the county clerk of the city and county, or that the reporter had transcribed his shorthand notes into longhand, or that he ever certified to the same,” as required by subdivision 5 of section 869 of the Penal Code.

That section provides that when testimony, given…