Cumpston v. State
| Decision Date | 25 October 1950 |
| Docket Number | No. 24862,24862 |
| Citation | 155 Tex.Crim. 385,235 S.W.2d 446 |
| Parties | CUMPSTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Tyson, Dawson & Dawson, and Doyle Pevehouse, all of Corsicana, for appellant.
Charles T. Banister, County Attorney, Corsicana, Stuart B. Lumpkins, County Attorney, Waxahachie, William Justice, Special prosecutor, Athens, and George P. Blackburn, State's Atty., of Austin, for the State.
DAVIDSON, Commissioner.
This is a conviction for murder without malice, with punishment assessed at confinement in the penitentiary for two years.
Appellant was a deputy city marshall of the City of Blooming Grove, Texas. The killing, which appellant admitted, grew out of an arrest or an attempted arrest of the deceased and his companion.
The fact issue is whether the killing was in self-defense.
In the light of the questions presented for review, an extended statement of the facts is not deemed called for.
The offense was alleged to have been committed on March 5, 1949, in Navarro County. Two trials in that county failed of a final judgment. Appellant's motion for change of venue was granted, and the case was transferred to Ellis County, where the instant trial was begun on January 9, 1950, and conviction had.
Upon each of the former trials Raymond McGraw had testified for the state. His testimony supported the theory of the state and contradicted appellant's theory of self-defense.
Upon the trial of this case the witness McGraw was absent and the trial court permitted the state, over appellant's objection, to introduce in evidence, by reading from the transcription of the official court reporter made at the second trial, portions of the testimony of the witness.
The objection to such testimony was that a sufficient predicate had not been shown to authorize the reproduction of the testimony of the witness.
The trial court in his qualification to this bill of exception refers us to the entire statement of facts, and especially to the testimony of the witness Dorsey McGraw, which we quote in full, as follows:
The envelope referred to in the testimony shows to be addressed to 'Mrs. H. G. McGraw, Blooming Grove, Texas, Gen. Del.' and postmarked at Wilmington, Ohio, on January 6, 1950. It bears the return address of 'R. McGraw, 467 N. Spring St., Wilmington, Ohio.'
The witness June Barnett testified as follows:
The foregoing is all the testimony upon which the state relies as furnishing the predicate for the admission in evidence of the testimony of the absent witness.
The right to reproduce before the jury the testimony of the absent witness rests upon that provision of Art. 749, C.C.P., which states that the witness shall have 'removed beyond the limits of the State'. Such right, being an exception to the constitutional guarantee that an accused is entitled to be confronted by the witness against him, Const. Art. 1, Sec. 10, Vernon's Ann.St., must be established by the state.
It would serve no useful purpose to here attempt to review the numerous cases upon this question. It appears sufficient to say that the appellant relies upon the authority of Smith v. State, 142 Tex.Cr.R. 349, 152 S.W.2d 751, 753, and authorities therein cited and discussed, holding that 'removal,' within the meaning of the statute, means 'permanently beyond the limits of the state', rather than mere temporary absence.
It is the contention of the state that the holding in the Smith case, supra, has been overruled by the cases of Conn v. State, 143 Tex.Cr.R. 367, 158 S.W.2d 503, and Norton v. State, 148 Tex.Cr.R. 294, 186 S.W.2d 347, and that permanent residence of the witness in another state is no longer necessary to be shown in order to constitute a predicate for the reproduction of the testimony of the absent witness.
If doubt remained that the permanent residence provision as announced in the Smith case, supra, had been overruled by the Conn case, supra, such was made definite by the Norton case, supra. In that case, facts showing the witness had secured employment in the State of California, where she had resided for six weeks, was held to be a sufficient predicate to warrant the reproduction of the testimony of the absent witness.
In the instant case, the witness had been gone from this state for about three months. He went, first, to the State of Louisiana, where he secured employment. He left Louisiana and went to the State of Ohio some six or eight weeks before the trial...
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Whitehead v. State
...absent witness given at a former trial it has the burden of establishing an exception to the right of confrontation. Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446. In the case at bar the district attorney elicited from one of his witnesses, W. A. Harris, that Cecil Porter was in the ......
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Stephenson v. State
...absent witness given at a former trial it has the burden of establishing an exception to the right of confrontation. Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446.' Further, it is observed that the Supreme Court in Barber v. Page, supra, held that a 'witness is not 'unavailable' for ......
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Rounsavall v. State
...of the witness. See Article 39.01, Vernon's Ann.C.C.P.; 1 Branch's Ann.P.C.2d Ed. §§ 98 & 99, pp. 110--112; Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446 (1951). Cf. Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1969). Here the right of confrontation was clearly involved. See Pointer......
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Forbes v. State
...the right of confrontation. See Carver v. State, supra; Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1969); Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446 (Tex.Cr.App.1951). "Recognizing the traditional exception to the confrontation requirement where a witness is unavailable and has......