Jamail v. State

• Decision Date: 28 January 1925
• Docket Number: (No. 8299.)
• Citation: 268 S.W. 473
• Parties: JAMAIL v. STATE.
• Court: Texas Court of Criminal Appeals

268 S.W. 473

JAMAIL v. STATE.

(No. 8299.)

Court of Criminal Appeals of Texas.

January 28, 1925.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

J. M. Jamail, alias Monzu Jamail, was convicted of robbery, and he appeals. Affirmed.

Love, Wagner & Wagner, of Houston, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is robbery; punishment fixed at confinement in the penitentiary for a period of five years.

In the indictment, the appellant J. M. Jamail, Aubrey Bingham, and Mattie Bingham were charged with the offense. John Johnston was named as the injured party. The property taken consisted of four fur coats, two fur capes, and three fur scarfs.

The testimony of John Johnston, Neal O'Hare, William Johnston, and Henry Johnston was introduced by the state. None of these witnesses were present at the time of the trial, but had given testimony upon the examining trial which took place on the 23d of February, 1923. The testimony of each of said witnesses was reduced to writing, signed, and sworn to by them. Its admissibility is challenged upon the ground that the predicate relied upon was insufficient. As a part of the predicate, the testimony of the district attorney is relied upon. He testified and identified four envelopes and letters received by him through the mail. Each of said envelopes was addressed to J. Dixie Smith, criminal district attorney, Harris county, Houston, Tex. Each of said envelopes was postmarked, "Madison Square Station, New York, April 14, 5 P. M., 1923."

The state introduced a handwriting expert who gave the opinion that the signatures to the letters in question were in the same handwriting as the signatures to the testimony of the witnesses.

The letters were all alike save the signatures. They were introduced in evidence and read as follows:

"Mr. J. Dixie Smith, Criminal District Attorney, Harris County, Houston, Texas — Dear Sir: I am the identical John Johnson who testified in the examining trial of J. M. Jamail on February 23, 1923. At that time I was only in the state of Texas temporarily. My place of permanent resident is Detroit, Michigan. I am now out of the state of Texas permanently and do not expect to return to Texas.

                      "Yours,             John Johnston."
                

"The envelope bearing the foregoing letter is postmarked as follows: `Madison Square, New York, April 14, 5 P. M., 1923.'"

The reproduction of the testimony of a witness given in the examining court at which the accused was present and afforded the opportunity of cross-examination is permissible when it is made to appear that the residence of the witness is out of the state or that he has removed beyond the limits thereof. See articles 832 and 834, C. C. P.

Appellant through his counsel earnestly contends that the predicate for the reproduction of the testimony of the witnesses John Johnston, Neal O'Hare, Henry Johnston, and William Johnston was insufficient. Under what circumstances such predicate becomes sufficient has been the subject of inquiry and judicial expression many times. See Conner v. State, 23 Tex. App. 378, 5 S. W. 189; Parker v. State, 18 Tex. App. 72; also, 15 Am. Law Rev. p. 529, note. Among the decisions of this court found in the note mentioned are Brent v. State, 89 Tex. Cr. R. 544, 232 S. W. 846; Kerry v. State, 17 Tex. App. 179, 50 Am. Rep. 122; Somers v. State, 54 Tex. Cr. R. 475, 113 S. W. 533, 130 Am. St. Rep. 901; Peddy v. State, 31 Tex. Cr. R. 547, 21 S. W. 542; Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586; Pace v. State, 69 Tex. Cr. R. 27, 153 S. W. 132; Sanchez v. State, 69 Tex. Cr. R. 134, 153 S. W. 1133; Millner v. State, 72 Tex. Cr. R. 45, 162 S. W. 348; Id., 75 Tex. Cr. R. 22, 169 S. W. 899; Young v. State, 82 Tex. Cr. R. 257, 199 S. W. 479. In each of the above cases the predicate was held sufficient. In others, among which the following appear, the predicate was inadequate: Wingo v. State, 89 Tex. Cr. R. 162, 229 S. W. 858; Nixon v. State, 53 Tex. Cr. R. 325, 109 S. W. 931; Tippett v. State (Tex. Cr. App.) 37 S. W. 860; Martinas v. State, 26 Tex. App. 91, 9 S. W. 356.

In Conner v. State, 23 Tex. App. 384, 5 S. W. 191, it is said:

"The fact that a party is beyond the jurisdiction of the court, or beyond the limits of the state, may, as any other fact, be established by circumstantial evidence."

Without reviewing all of the precedents, it occurs to us that the facts which were before the court in the Conner Case, supra, and in Parker's Case, 18 Tex. App. 72, are not dissimilar or more cogent than those relied upon by the state in the present appeal.

In the Conner Case, supra, the witness Auger was tendered. As a predicate for the reproduction of his testimony, Carlton, a Major in the United States Army, testified that at the time Auger testified in the examining court he was an officer in a certain company of the United States Infantry, temporarily stationed at Fort Elliott, Tex., which company, according to the officer mentioned, had been ordered to Fort Sill, in Indian Territory, and some six weeks before the trial, Auger, as a member of that company, had been ordered to Fort Sill, was furnished transportation, and had departed on his journey. The witness had received a telegram signed A. A. Auger, announcing his arrival at Fort Sill. The objections urged were in substance such as were made against the receipt of the letters to which reference has been made in the present record.

In Parker's Case, supra, as a predicate for the testimony of Young, the witness Berry, a brother-in-law of Young, testified that he (Young) and his family had left Texas to go to Tennessee; that the witness had received a letter from Young's wife which was postmarked in Tennessee. Sanders, the stepfather of Young, testified that he had left Texas with the declared intention of going to Tennessee, and stated that he did not know whether he would remain there but might return to Texas. Sanders also said that his wife had received a letter from Young's wife in which she mentioned Young. The objection urged against the receipt of this testimony was that it was hearsay, that none of the letters were written by Young, and that the evidence touching them was incompetent. Without discussing the facts in detail, the court held that the predicate was sufficient for the introduction of Young's testimony.

In the present case, aside from the reproduced testimony, it appears that the owners of the property were sailors. This appears from the testimony of the witness Blaylock who drove the Hudson car used by the appellant in the robbery. It also appears from the testimony of the witness Gilmore at the holding of the examining trial that there were four sailors who were concerned in the alleged robbery whose names were given as John, Henry, and William Johnston, and Neal O'Hare. This witness also testified that the sailors stated that they resided in Scotland. To this testimony we find no objection urged.

The witness Oliver, who conducted Mrs. Mattie Bingham to the room which was occupied by John Johnston and his companions, described them as sailors and said that Mrs. Bingham asked him if she could see the sailors who had the furs and that he conducted her to their room. Mrs. Bingham testified that the appellant gave her...