Crumbley

In a non jury trial defendant was adjudged guilty of assault with a deadly weapon, a felony. He appeals from the judgment and the order denying his motion for a new trial.

He contends that the court erred in receiving in evidence the testimony of the victim, Wilburt Bloxham, which was given at the preliminary examination; and that the evidence was insufficient to prove an assault with a deadly weapon.

Mr. Bloxham was not present at the trial. In order to lay a foundation for presenting his testimony which was given at the preliminary examination, the People submitted testimony as follows:

Mrs. Bloxham testified (with respect to the unavailability of Mr. Bloxham as a witness) : She last saw him on Sunday, a week before Memorial Day in 1961. On that day, about 8 a. m., he left the apartment or hotel, where they lived, and said he was going to get a package of cigarettes. She has not heard from him since that day. Several times when he had been drinking he would speak of going to Chicago or Salt Lake City. On several previous occasions he had left their home without telling her where he was going. Sometimes he would stay away three or four months. On some of those occasions he…