This is an appeal from a judgment against defendant, and the order denying defendant's motion for a new trial.
Defendant upon a previous trial was convicted, and upon appeal from the judgment and order denying his motion for a new trial this court reversed the judgment, but failed to expressly or in terms dispose of the appeal from the order denying the motion for a new trial. Neither did this court upon the former appeal expressly order a new trial nor direct the discharge from custody of the defendant. (Pen. Code, sec. 1262;People v. Ballard, 1 Cal.App. 222, [81 P. 1040].)
Upon the calling of the case for trial after the going down of the remittitur, defendant objected to the trial proceeding, upon the ground that the court had no jurisdiction to proceed, no new trial having been ordered by the appellate court. This objection was overruled and the trial proceeded.
Defendant now contends that because this court failed to order a new trial upon reversing the former judgment, the trial court should have dismissed the action.
We think the point has been disposed of adversely to defendant's contention by the decision of the supreme court, to which he applied for a discharge from custody upon habeascorpus. (Ex parte Ballard, 149 Cal. 114, [84 P. 833].) The court pointed out that where, as in this case, the appellate court reverses a judgment without either ordering a new trial or directing the discharge of the defendant, such action is evidently the result of inadvertence and of a temporary forgetfulness of the provisions of section 1262, Penal Code, and that in such case the remedy of the defendant would be *Page 513 a motion in such court for an order directing such discharge. If such motion had been made this court could have made a proper order disposing of the case. As it appears that the judgment upon the first appeal was reversed for a cause that required the granting of the motion for a new trial, this court could, and doubtless would, if its attention had been called to the fact that it had failed to dispose of the appeal from the order denying the motion for a new trial, have made an order reversing such order. This in effect would have been the ordering of a new trial. (People v. Hardisson, 61 Cal. 378.)
The judgment of conviction having been reversed, and this court not having ordered the discharge of the defendant or a dismissal of the action, the trial court had jurisdiction to proceed with a new trial.
It is also contended that the court erred in overruling the objection of defendant to the reading in evidence the deposition of an absent witness taken on the preliminary examination of the defendant. It is not claimed upon this appeal, as it was upon the former appeal, that it had not been sufficiently shown that the witness could not be found. The record before us shows that the testimony of the absent witness was read from a transcript of such testimony taken before the police court, and, of course, then present in court. It is now urged that it does not appear that the witness who gave the testimony was sworn. No such objection was made before the trial court. The objection simply was that the testimony was "immaterial, irrelevant, incompetent and hearsay." If, in fact, the transcript from which the district attorney read did not show that the witness gave the testimony under oath, and if the real point of the objection was that the witness was not sworn, it was the duty of counsel to specifically make the objection upon that ground. By the general objection that the evidence was "incompetent and hearsay," the court was not informed of the point now urged in this court. If it had been, doubtless the record would clearly show whether or not such witness was sworn at the preliminary examination. The record does not show that he gave his testimony without objection from defendant, who was there represented by the same counsel who represents him now, and that the witness was cross-examined by such *Page 514 counsel. Under such circumstances we do not think that the objection now urged was presented by the objection actually made to the trial court.
No other point is made for a reversal, and the judgment and order are affirmed.
Cooper, P. J., and Kerrigan, J., concurred.