Matthews v. State , 109 Tex. Crim. 560 ( 1928 )

The state has filed a forceful motion insisting that Sweeney's case, 146 S.W. 883, in effect overruled Askew v. State, 59 Tex.Crim. Rep., 127 S.W. 1037, and Hardin v. State, 55 Tex.Crim. Rep., 117 S.W. 974, which among others were relied on in our original opinion. The opinion in Sweeney's case was by a divided court. The majority opinion has not been regarded as sound. It has never been followed, whereas upon the point at issue Askew, supra, has been cited with direct approval in Schultz v. State, 97 Tex.Crim. Rep.,262 S.W. 493, and followed in principle in Parker v. State,86 Tex. Crim. 22, 216 S.W. 178, and Funk v. State, 84 Tex. Crim. 402, 208 S.W. 509, while the Hardin case (supra) has been cited with direct approval in Schultz v. State (supra), and likewise followed in principle in the Parker and Funk cases (supra). The decisions in the Schultz, Parker and Funk cases have all been rendered since the decision in Sweeney v. State. The majority opinion in the latter case is based in part upon a qualification to a bill of exception stating that when the proof was made as to the absent witness being out of the state the court did not know but that the state was laying a predicate for the reproduction of testimony given by the absent witness on a former trial, although it appears that such qualification was placed on the bill over defendant's objection. Such being the case this court was without authority to consider the qualification or in any manner base an opinion thereon. (See Stapleton v. State, 107 Tex.Crim. Rep.,298 S.W. 578 for citing to statute and collation of authorities.)

The motion for rehearing is overruled.

Overruled.