Brent v. State

• Decision Date: 15 June 1921
• Docket Number: (No. 6288.)
• Citation: 232 S.W. 845
• Parties: BRENT v. STATE.
• Court: Texas Court of Criminal Appeals

232 S.W. 845

BRENT v. STATE.

(No. 6288.)

Court of Criminal Appeals of Texas.

June 15, 1921.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

E. Brent was convicted of murder, and he appeals. Reversed and remanded.

See, also, 213 S. W. 945.

Marsene Johnson, Elmo Johnson, Roy Johnson, and Marsene Johnson, Jr., all of Galveston, for appellant.

C. H. Theobald, Co. Atty., and Frank S. Anderson, both of Galveston, and R. H. Hamilton, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the Tenth district court of Galveston county of murder, and his punishment fixed at death.

Appellant had been a negro police officer in the city of Galveston for a great many years. There is much evidence in the record of ill feeling on the part of deceased against appellant, arising out of certain acts of the latter while acting as such officer. After the last city election in Galveston appellant resigned his position, and a short time thereafter deceased was appointed a policeman, and on the night after his appointment he was killed by appellant. In view of the fact that this court is of opinion that the case must be reversed, a discussion of the facts will be pretermitted.

Appellant's first bill of exceptions complains that the state was allowed to reproduce the testimony of a witness given at a former trial of this case, said witness having since removed to the state of New York, where she was at the time of the trial. The objections made were that appellant had the right to be confronted by the witnesses in the present trial, and that the predicate laid for the introduction of said evidence was not sufficient, in that it did not show the permanent removal from this state. Since the rendition of the opinion in Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533, Ann. Cas. 1913C, 440, this court has uniformly held that the testimony of a witness given at a former trial may be reproduced when such witness has died or removed beyond the jurisdiction of the court. Modello v. State, 85 Tex. Cr. R. 291, 21 S. W. 944; Mitchell v. State, 87 Tex. Cr. R. 530, 222 S. W. 983. We do not deem it of value to discuss the question further, as it is now the settled law of this state.

We do not think the predicate laid by the state for the introduction of said testimony open to the objection that it showed only a temporary absence of the witness. The fact that in a letter, which states positively that New York is the present and future home of said witness, she expressed a purpose at some indefinite time in the future to come home, would not be sufficient to warrant the rejection of said evidence. We do not think the expression in the opinion in Anderson v. State, 74 Tex. Cr. R. 621, 170 S. W. 142, to the effect that it is only when a person is permanently gone beyond the jurisdiction of the court that such evidence can be reproduced, was intended to convey the idea that such witness must be shown to never intend to come again into the jurisdiction of the forum. The reason of the rule admitting such testimony rests in the necessity of the case, and if it appear that the removal of the witness is what is ordinarily referred to as temporary—for instance, where one whose home is in Texas has gone on a journey which may occasion the present absence of said witness, and which will in due course of events be ended by the return of such witness—the predicate would not appear to be sufficient; but when residence is shown as outside of the state, and the return to the jurisdiction is indefinite, no reason would appear for the refusal of the evidence.

By a number of bills of exceptions complaint is made of the rejection of...