Ogburn v. State

Upon the trial, the testimony of Mrs. Marie Preston, given at the examining trial, was reproduced and used against the appellant. Against its introduction, the point was made that sufficient predicate had not been laid for reproducing her testimony. To meet the demand of the law touching the predicate, the State relied upon the testimony of W. G. Preston and of Mrs. Slocum. In a bill of exceptions, complaint is made of the receipt of the testimony of W. G. Preston upon the subject. According to this bill, he testified that he had received letters from Mrs. Preston, written from Tulsa, Oklahoma, and that in said letters she said that she was living in Tulsa, Oklahoma. Against the receipt of this testimony an objection was urged that the letters would be the best evidence of their contents.

In the bill complaining of the receipt of the testimony of Mrs. Slocum, it appears that from letters received from Mrs. Preston from Tulsa, Oklahoma, the witness knew that Mrs. Preston had resided in Tulsa for some three months previous to the trial.

On the sufficiency of the predicate and the admissibility of testimony for the purpose of reproduction of evidence, the cases of Connor v. State, 23 Tex.Crim. App. 383; Parker v. State, 18 Tex.Crim. App. 72, are illustrative of the rule which obtains in this State. Many other cases will be found collated in the case of Jamail v. State, 99 Tex. Crim. 127; also in Amer. Law Rep. Vol. 15, p. 529, note.

In addition to that which is contained in the bill, however, Preston testifies that he and his wife lived at Texarkana at one time. He further testified:

"* * * but she is living in Oklahoma now, at Tulsa, Oklahoma. I got a letter from her last Friday or Saturday, from Tulsa, and I have received letters from her off and on all the time, about once every two weeks, and she has been at the same place all the time. She is with her father and has been there about seven or eight months, I guess. * * * Marie Preston was my wife at that time, but we are separated now, and she is living in Oklahoma with her father."

We fail to find, by cross-examination or otherwise, that the witness Preston qualified his statement that his former wife was living in Oklahoma or that he gave any statement that he based his opinion upon the receipt of the letters. We have perceived no testimony in the record controverting the testimony of Preston that his former wife was residing in Oklahoma with her father. Her former testimony was in writing and properly proved on the trial. The only other fact essential as a predicate for the receipt of the testimony was that her permanent removal from the state be shown. This seems to have been shown by the testimony of Preston showing that she resided in Oklahoma and by the admissible circumstances that both he and Mrs. Slocum had received letters from her postmarked at Tulsa, Oklahoma. Proof that one is beyond the jurisdiction of the court or beyond the limits of the state may, as well as any other fact, be established by circumstantial evidence. See Connor v. State, 23 Tex.Crim. App. 384; Jamil v. State, supra. No controverting evidence having been introduced, it is believed that notwithstanding the contents of the letters and the conclusion of Mrs. Slocum may have been improperly received and could not be relied upon as a part of the predicate, the other testimony to which we have adverted constituted a sufficient predicate upon which to receive in evidence the former testimony of Mrs. Preston.

Preston also testified that Mrs. Preston had gone to Oklahoma some six or eight months before the present trial and that she told him that she was going to live with her father. Preston was a citizen of Arkansas. If the predicate showing that she was a permanent resident of Oklahoma was not adequate, her domicile, in the absence of a divorce, would apparently be the same as that of her husband in the state of Arkansas. In such case, the reproduction of her testimony was not contrary to law.

The application to file a second motion for rehearing is overruled.

Overruled.