Conn v. State ( 1941 )

I find myself unable to agree to the affirmance of this case because I do not believe that the State has laid the proper predicate for introducing the testimony given by John Horton, Jr., on a former trial. The opinion says that John Horton, Sr., testified "that since the first trial of this case John Horton, Jr., had moved to San Diego, California." The witness did not make that direct statement, but the evidence which he did give is quoted, and I cannot agree that it can be construed to mean that he had "moved" to California or to any place. It only says that he is "in" California. I find nothing in the testimony of this or any other witness by which I can conclude that the State has proven the absence of the witness permanently or for any stated period of time. True, the letter introduced in evidence says that he had a job there, but the permanency of this job is not proven by the fact that he would lose it if he came here for the purpose of testifying. It rather indicates a lack of being established in that job.

The writer has heretofore expressed his views on the importance of this question in the case of Smith v. State,152 S.W.2d 751, and attention is called to that opinion for a more elaborate discussion than is necessary to make here in order to properly record a dissent.

My associates do not agree that the case of Freeman v. State,30 S.W. 330, is applicable to the facts of this case. I think it is because Judge Morrow in that opinion emphasizes the importance of showing the "permanent" absence beyond the state in the following language:

"This court, in interpreting the Constitution, has declared that though the witness be beyond the limits of the state, the statute does not authorize the reproduction of his testimony unless it be shown that he is permanently beyond the limits ofthe state, (italics his). By analogy, apparently a like interpretation should apply to the language of the statute with reference to age and bodily infirmity. In other words, age or bodily infirmity, which might delay, but not prevent the attendance of the witness, would not be such as to justify the reproduction of his testimony under the provisions of articles 749 and 750, C. C. P."

Likewise, absence from the state which might "delay, but not prevent the attendance of the witness" should not fulfill the requirements. People go far these times for temporary jobs, and one which would be lost by a party attending court appears to be very temporary. Furthermore, it is the duty of the State to show some degree of permanency, and this it did not do.

I do not think the cases of Fisher v. State, and Finley v. State touch the question here involved. They would be authority in a measure and we could readily agree on the affirmance of this case if the State had proved the removal of the witness to the State of California by some evidence, circumstantial or otherwise, or that he intended to make it his home or to remain there for any indefinite period of time, indicating an unreasonable delay of the trial of the case. The record in the instant case is silent on the question of the time he intends to be away, and we are left to presume that it is sufficiently long to work an exception to one of the most important rules in our procedure and to release a valuable right guaranteed to us by constitutional provision. I am opposed to indulging this presumption in favor of either party. If such is the fact, or if there be circumstances to show permanent absence, the State had the witnesses present who could have testified to it, and its failure to do so indicates to my mind an inability to make the proof.

The opinion states that reliance is had on Fisher v. State,1 S.W.2d 318 and also Finley v. State, 92 Tex.Crim. R.. The Fisher case is authority for the proposition that the absence of a witness may be proven by circumstantial evidence. To this we agree, but we do believe that the evidence should lead unerringly to the conclusion that the party is permanently absent and not just merely that he is absent. It should exclude any other reasonable conclusion. The Finley case contains the statement, "as part of the evidence in the instant case letters bearing a California postmark and a statement by the absent witness written from California stating the impossibility of his being present and testifying in this case, and further proof of correspondence between parties in El Paso and the absent witness in California * * *." It will be noted that this quotation says that letters from California stated the impossibility of the witness being present, which is rather indefinite. Consequently, we have examined the original papers in this case and find that the record under consideration and which formed a basis for that statement, as revealed by the bill of exception bringing the case before this court, shows that the witness "lives" in Los Angeles. The following excerpt from the bill of exception in that case indicates very clearly what the court meant, and is based on the fact that it was positively shown that the witness had moved his residence to Los Angeles:

"The testimony of the witness Frank Allen that he believed that the witness, Homer Long, was now residing in Los Angeles, in the State of California, and that he based his belief upon some statements in letters that had been received from the said Homer Long by his, Frank Allen's, mother to the effect that he had moved his residence to Los Angeles."

There is no such evidence in the case at bar. The opinion indulges a construction which we do not believe is justified. Examination of the record in the Finley case, upon which the opinion in this case is based, removes from consideration the only case which I have been able to find that will, to any degree, support the majority opinion on the one question upon which we differ. Furthermore, the Finley case relies upon the following authorities:

Anderson v. State, 170 S.W. 142, in which the court construed the language to mean that the witness had permanently removed;

Sanchez v. State, 153 S.W. 1133, where the testimony was to the effect that the witness was in a foreign country. A letter from him said that he was employed there. The court, because of the distance and surrounding circumstances, indulged the inference that his absence would be of sufficient length of time to classify it as permanent;

Millner v. State, 162 S.W. 348, in which the predicate was based upon a letter from the absent witness, also in a foreign country, in which the witness said he was still going to sea and was not coming back for a year. To another party the witness wrote that he could next be found in Hamburg, Germany.

None of the authorities relied on in the Finley case will support the majority opinion in the instant case.

The unusual history of the several instances in which this court has reversed its previous holdings on the question under consideration is almost without parallel. Few questions have engaged the attention and called for research by learned Judges to a greater extent than this. Judge Davidson maintained always that the admission of such testimony was contrary to the provisions of our Constitution herein referred to, and that even the death of a witness did not make his former testimony available. If it were a matter open to our construction, the writer might agree to this view, but we consider that question settled even before the formation of the Republic of Texas. The exact language in our Constitution is taken from that found in the Federal Constitution. Long prior to its appearance in the Constitution of the Republic of Texas the courts had so construed it as to make admissible testimony of deceased persons which had been given on former trials. We adopted it after such judicial constructions had been made and, consequently, are bound by them. However, I am unwilling to go further than the courts, State and Federal, have heretofore gone in admitting this class of evidence.

After a reading of the many authorities cited by both parties, together with leading cases and text books, I am in hearty accord with the conclusion of Judge Morrow as expressed in the Freeman case that one must be impressed with the conviction that the predicate for the reproduction of the testimony of an absent witness must reveal an impediment to the presence of the witness more cogent than a temporary illness or absence; that the right to have the jury who is trying a party observe the manner and way the testimony is given by the witness against him is too important to be lightly disregarded and to be set aside except upon the ground of necessity.

I think, too, that the guaranteed right of a party to have compulsory process would be seriously impinged by a departure from the rules heretofore established by this court, as I believe the majority opinion does do in this case. It is the universal experience of lawyers accustomed to the trial of cases that testimony will frequently be given by witnesses which, upon further investigation by the opposing party, may be proven to be false. When a lawyer, either side, has fear and doubt about the ability of his witness to withstand a cross-examination upon another trial of a case, it may become an easy matter for his witness to cross the border of the state, sometimes a distance of only a few miles, engage in a job of work and write home that he is not able to leave his present employment, and, without proof that he had moved other than that his wife was there also, without evidence that his household goods or his cattle had been either sold or removed, or that his housekeeping equipment in the State of Texas had in any way been disrupted, and without proof that he intended to stay out of the state for any indefinite or stated period of time, to then reproduce his evidence on the trial of the case and have it read to the jury. This illustration would be in strict compliance with the majority opinion from which I dissent. It will open the gates and invite a predicate which this court cannot countenance and, to my mind, contribute materially to a situation, particularly along the border of the state, which my associates do not contemplate. No force is added to the majority opinion by reason of the fact that the witness had gone to a distant place, unless it be so distant as to indicate a longer period of time for his absence than here shown. It would be the same if he had crossed the Louisiana line only a few miles away.

While it is not practical to further elaborate on my reason for the view herein expressed, I think that what I have said will suffice to perpetuate my views of a right which I consider to be of vital importance as expressed by the constitutional provisions found in Art. 1, Sec. 10, and by the sixth amendment of the United States Constitution, guaranteeing to any party accused of crime the right to be confronted with the witness against him and to have compulsory process for obtaining witnesses in his favor except when that witness "RESIDES" out of the State.

ON MOTION FOR REHEARING.