In re Montgomery

Petitioner was convicted on January 21, 1964, of two counts of robbery in the first degree. (Pen. Code, § 211.) Sentences were ordered to run concurrently. The only evidence introduced by the People on count I, the robbery of John Dewey Bloss on September 29, 1963, was the transcript of Bloss’ testimony at the preliminary hearing. The testimony was admitted, over petitioner’s objection, after the People had established that Bloss was absent from the state at the time of the trial.

At the trial on January 17, 1964, the prosecutor stated that a subpoena previously had been sent to Bloss at his place of employment. Bloss was in New York at that time but was expected to return on January 4, 1964. During the noon recess an investigator made a telephone call to Bloss in New York, and he was informed that Bloss planned to remain in that state for an extended period of time. This constituted the entire showing of the prosecution’s “good faith effort” to locate the absent witness and to secure his presence at the trial. 1

In this habeas corpus proceeding petitioner challenges his conviction on that count contending that it is invalid because he was denied the right of…