Zulkoski v. State

Re-examination of the record in the light of the appellant's motion for rehearing leads us to the conclusion that proper disposition was made of the appeal upon the original hearing.

We are referred to the case of Somers v. State, 113 S.W. Rep. 533, in which was announced the rule that reproduced testimony given upon an examining trial should not be received where it appeared that the testimony related to an offense other than that for which the accused was on trial. As we understand the bill, the rule stated was not transgressed. Morehead, the deceased sheriff, had, upon the examining trial, given the testimony reproduced, and we fail to find aught in the bill supporting the contention of the appellant that the testimony related to an offense other than that for which the accused was on trial. If we comprehend the bill, the testimony given related to the present transaction. One of the reasons given by the appellant's counsel for opposing the introduction of the testimony was that it was adduced upon an inquiry concerning a different offense. The objection is but a ground upon which the receipt of the testimony is opposed and is not a substitute for the statement of an existing fact bearing the authentication of the trial judge. Quinney v. State, 86 Tex.Crim. Rep.; Gonzales v. State, 226 S.W. Rep. 405. As stated above, the transaction appears to be the same. The trial court having received it, the presumption that he correctly ruled prevails, there being nothing in the bill showing any fact rendering his ruling erroneous. See Cavanar v. State, 269 S.W. Rep. 1063; Ard v. State, 276 S.W. 263.

The motion for rehearing is overruled.

Overruled.