Martinez v. State
| Decision Date | 10 October 1888 |
| Citation | 9 S.W. 356 |
| Parties | MARTINEZ <I>v.</I> STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Gonzales county; GEORGE McCORMICK, Judge.
Defendant appeals from a conviction for assault with intent to murder. Code Crim. Proc. art. 772, provides that "depositions taken in criminal actions shall not be read unless oath be made that the witness * * * has removed beyond the limits of the state." Article 773 provides that, when the deposition is sought to be used by the state, the oath may be made by the district or county attorney or any other credible person.
W. W. Glass, for appellant. Asst. Atty. Gen. Davidson, for the State.
On the trial of this cause the state, over objection of defendant, was permitted to read in evidence the written testimony of Crecentio Garete, the injured party, taken before an examining court in accordance with law. The ground upon which said testimony was admitted was that since it was taken the witness had removed beyond the limits of this state. The objection made to its admission was that the state had not sufficiently established said ground. The only evidence upon the subject is the statement, in an affidavit made by the district attorney, that said witness at one time resided in Gonzales county, Tex., but was then absent from said county, and had been so absent for a year or more; that due diligence had been used to ascertain the whereabouts of said witness by causing attachments to be issued to every county in the state, all of which had been returned not executed, as no such man resided in the counties; that the affiant had reason to believe, and did believe, that said witness was beyond the limits of the state of Texas. It is only under the provisions of our statute that testimony taken before an examining court can be used in evidence against a defendant; and, to render it admissible, it must be shown, clearly and satisfactorily, that it comes within those provisions. Code Crim. Proc. arts. 772-774. In the case before us to render the testimony of the witness Garete admissible, it devolved upon the state to establish, by the oath of the district or county attorney, or of some credible person, that said witness had removed beyond the limits of this state. While it was competent to establish such fact by circumstantial evidence, (Conner's Case, 23 Tex. App. 378, 5 S. W. Rep. 189,) as was sought to be done by the affidavit of the district attorney, such evidence, to be sufficient, must be clear...
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