Martinas v. State , 26 Tex. Ct. App. 91 ( 1888 )

Willson, Judge.

On the trial of this cause the State was permitted to read in evidence, over the objection of the def end ant, the written testimony of Crecencio Garete, the injured party, taken before an examining court in accordance with law. The ground upon which said testimony was admitted was that, since it was taken, the witness had removed beyond the limits •of this State. The objection made to its admission was that the State had not sufficiently established said ground. The ■only evidence upon the subject is the statements in an affidavit made by the district attorney that said witness,at one time resided in Gonzales county, Texas, but was then absent from .said county, and had been so absent for a year or more; that due diligence had been used to ascertain the whereabouts of said witness by causing attachments.to be issued to «very county in the State, all of which had been returned not executed, as no such man resided in the counties; that the affiant had reason to believe and did believe that said witness was beyond the limits of the State of Texas.

It is only under the provisions of our statute that testimony taken before an examining court can be used in evidence against a defendant, and, to render it admissible, it must be shown clearly and satisfactorily, that it comes within those provisions. (Code Crim. Proc., arts. 772, 773, 774.) In the case before us, to render the testimony of the witness Garete admissible, it devolved upon the State to establish by the oath, of the district or county attorney, or of some creditable person, that said witness had removed beyond the limits of this State. While it was competent to establish such fact by circumstantial evidence (Conner v. State, 23 Texas Ct. App., 378) as was sought to be done by the affidavit of the district attorney, such evidence to be sufficient must be clear and convincing, showing to the satisfaction of the mind of the court the-existence of the fact relied on. It has always been held by this court that to render such testimony admissible a predicate must be clearly and satisfactorily established in conformity with the statute. (Sullivan v. The State, 6 Texas Ct. App., 319; Evans v. The State, 12 Texas Ct. App., 370; Pinckney v. The State, Id., 319; Menges v. The State, 21 Texas Ct. App., 413; Steagald v. The State, 22 Ct. App., 364.)

Opinion delivered October 10, 1888.

To our minds the evidence that the witness Garete had removed from the State is not clear and satisfactory, and does not, in our judgment, warrant the admission of his written testimony. It shows merely a probability that the witness had left the State. Conceding that inquiry had been made for him by means of attachments sent to every county in the State, as-stated in the affidavit of the district attorney, and that the officers who received the attachments made diligent but ineffectual search for the witness in their respective counties, it does not certainly follow that he had removed beyond the limits of the State. He may have gone into a county after the attachment which had been sent to that county had been returned, and may have since resided in that county. It seems reasonable to us-that if the witness had in fact removed from the State, clearer and more satisfactory evidence of his removal can be produced by the State than was produced on the trial. But, be this as it may, we are unwilling to go beyond the statute and former decisions of this court with respect to this character of evidence, which, in our opinion, we would do were we to hold the testimony of the witness Garete admissible.

Because the court erred in admitting said testimony, and because such error is material, the judgment is reversed and the cause is remanded.

Reversed and remanded„