Ogburn v. State

• Decision Date: 16 January 1924
• Docket Number: (No. 7946.)
• Parties: OGBURN v. STATE.
• Court: Texas Court of Criminal Appeals

257 S.W. 887

OGBURN v. STATE.

(No. 7946.)

Court of Criminal Appeals of Texas.

January 16, 1924.

Appeal from Criminal District Court, Bowie County; Hugh Carney, Judge.

Lee Ogburn was convicted of theft of an automobile, and he appeals. Reversed and remanded.

G. C. Barkman and Keeney & Dalby, all of Texarkana, for appellant.

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

LATTIMORE, J.

Appellant was convicted in the criminal district court of Bowie county of theft of an automobile, and his punishment fixed at five years in the penitentiary.

A colored doctor named Thompson lost his Ford car on the night of the 14th of June. Some weeks later he recovered it. He said it was taken between 8 and 10 o'clock on said night. We have examined the record very carefully, and the only evidence offered by the state which seems to connect the appellant with the taking of the car in question is the testimony given by his brother, Virgil Ogburn, on the occasion of the preliminary hearing of appellant had in July a few weeks after the alleged loss of his car. The brother said in said testimony that he lives in Louisiana, and that four or five days before the 19th of June, 1921, he was awakened in the early morning about daybreak by Dorris Parker and Lee Ogburn (appellant), who left a Ford car in front of his garage. The defense offered in evidence another portion of the statement of Virgil Ogburn as given on said preliminary trial in which he said that he thought it was Lee Ogburn and Parker who brought the car that morning; that it was before daylight and that he had just awakened and that there were two men in the car; some one hollered and said, "Hello, Mr. Ogburn," and that awakened him, and he said, "Hello"; the man then said, "I want to leave my car here," and witness said, "All right." Witness was getting up when he did this talking. That was the only view he had of the parties. He further said that he had never seen appellant around this car at all unless it was he who came there that morning.

In addition to the testimony of this witness given at the preliminary trial which was reproduced on the instant trial, the state also was permitted to reproduce the testimony of one Frank Moore, who stated that Dorris Parker and Virgil Ogburn came to his house and left an old car in his garage, and that a day or two later he discovered that the old car had been taken out and a comparatively new car substituted therefor, which new car was later taken away from his house and turned over to the officers and seems to have been the car taken from prosecuting witness Thompson. This witness did not attempt to say that he had ever seen appellant doing anything with or having any connection with said car.

Appellant strenuously objected to the reproduction of the testimony of said two witnesses. The matter has been carefully considered. The preliminary trial was had in July, 1921, and the instant trial was had in February, 1923. In order to justify the reproduction of the former testimony of a witness who is absent at the trial upon the ground that he is a nonresident or dead, the facts must sufficiently make out a predicate. In a case such as this where the absence of the witnesses from the state is relied...