Young v. State

• Decision Date: 14 November 1917
• Docket Number: (No. 4694.)
• Citation: 199 S.W. 479
• Parties: YOUNG v. STATE.
• Court: Texas Court of Criminal Appeals

199 S.W. 479

YOUNG v. STATE.

(No. 4694.)

Court of Criminal Appeals of Texas.

November 14, 1917.

On Motion for Rehearing, December 21, 1917.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

A. P. Young was convicted, and appeals. Affirmed.

Farmer & Farmer and Taylor & Taylor, all of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant appeals from a sentence condemning him to confinement in the state penitentiary for a term of 5 years on conviction of the offense of robbery.

The state reproduced the testimony of R. W. Echols, the alleged injured party, given at the examining trial of appellant, at which he was present. D. C. Woods, who was assistant county attorney, preliminarily in reproducing the testimony testified that he attended the examining trial of appellant in his capacity as assistant county attorney; remembered R. W. Echols testifying; that he testified to a robbery that occurred near the railroad; that to give the details he would have to read the written statement, in regard to which he said:

"This is the testimony that I took down at the time. I took it down correctly. But I can give it better by reading this than I could by reciting it."

He further reiterated that he had the testimony down at the examining trial on paper which he had in his hand, and that it was his way of preparing the testimony in such trials. He was then permitted by the court to read from the writing in his possession the alleged testimony of the witness. Appellant objected to the evidence on several grounds which are disclosed in the bill of exceptions No. 1, which appears to be a reproduction of the proceedings while this witness Wood was upon the stand, in detail as recorded by the stenographer. The objections made we quote from the language of appellant's attorney in reserving the bill:

"We reserve our bill of exception to all of that, and I want the bill to show that the assistant county attorney, who took the examining trial in this case, was permitted to read the testimony of the prosecuting witness, Echols, in the final trial of this case in the district court.

"The Court: You can show the facts. He testified that he took it down and heard him testify and it was correctly taken down.

"And on the ground that the statement read to the jury was not properly authenticated by the justice of the peace. It was not signed by the witness Echols, nor was it signed or shown to have been drawn up by the justice of the peace, nor was it shown to have come from the possession of the district clerk's office.

"The Court: All right. Of course, if that was all done, you wouldn't have to have Mr. Woods here. You could just shove it in and introduce it.

"We object to it further on the ground that the statute provides that every man shall be confronted with by the witnesses against him, and the testimony in this case showing that the state witness whose testimony is reproduced here is at this time residing in the state of Alabama."

The record shows that the justice of the peace who conducted the examining trial was introduced as a witness by the state, and testified with reference to certain papers which were presented at the trial as follows:

"That is the examining trial record in that case. Those are the papers in that examining trial. They were sent to the district clerk's office by me."

In discussing this bill in their brief appellant's counsel stress some matters which are not raised in the exceptions quoted. As to what ruling the court made and exceptions were taken, we are confined to the bill of exceptions. However, we are taking up the matters presented in the brief. Article 300 of our C. C. P., relating to examining trial, is as follows:

"The testimony of each witness examined shall be reduced to writing by the magistrate, or some one under his direction, and shall then be read over to the witness, or he may read it over himself; and such corrections shall be made in the same as the witness may direct; and he shall then sign the same by affixing thereto his name or mark. All the testimony thus taken shall be certified to by the magistrate taking the same."

Articles 832, 833, and 834 are as follows:

Article 832:

"Depositions taken in criminal actions shall not be read, unless oath be made that the witness resides out of the state; or, that, since his deposition was taken, the witness has died; or that he has removed beyond the limits of the state; or that he has been prevented from attending the court through the act or agency of the defendant; or by the act or agency of any person whose object was to deprive the defendant of the benefit of the testimony; or that, by reason of age or bodily infirmity, such witness cannot attend."

Article 833:

"When the deposition is sought to be used by the state, the oath prescribed in the preceding article may be made by the district or county attorney, or any other credible person; and, when sought to be used by the defendant, the oath shall be made by him in person."

Article 834:

"The deposition of a witness taken before an examining court or a jury of inquest, and reduced to writing, and certified according to law, in cases where the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, may be read in evidence as is provided in the two preceding articles for the reading in evidence of depositions."

The contention that the reproduction of testimony under the circumstances defined in our statute (article 834, supra) is violative of the Bill of Rights of the Texas Constitution (article 1, § 10) has frequently been considered by this court where the reproduced testimony was of a witness who died after giving his testimony and as to that of one who had removed beyond the limits of the state. A number of these cases are listed in Branch's Ann. P. C. p. 47, § 76. Perhaps on no subject touched in the history of the court has there been displayed greater research or more profound learning than is to be found in some of these decisions presenting the views of distinguished jurists. This is notably true of the majority opinion and dissenting opinion in the Cline Case, 36 Tex. Cr. R. 337, 36 S. W. 1099, 37 S. W. 722 61 Am. St. Rep. 850, where the reproduced evidence was rejected. The views expressed by this court in earlier decisions were contrary to the conclusion reached by the majority in the Cline Case. Black v. State, 1 Tex. App. 381; Ray v. State, 4 Tex. App. 455; Dunlap v. State, 9 Tex. App. 188, 35 Am. Rep. 736; Simms v. State, 10 Tex. App. 166; Potts v. State, 26 Tex. App. 665, 14 S. W. 456; McGee v. State, 31 Tex. Cr. R. 74, 19 S. W. 764; Bennett v. State, 32 Tex. Cr. R. 216, 22 S. W. 684; Meyers v. State, 33 Tex. Cr. R. 216, 26 S. W. 196; Clark v. State, 28 Tex. App. 195, 12 S. W. 729, 19 Am. St. Rep. 817; Parker v. State, 18 Tex. App. 90; Johnson v. State, 26 Tex. App. 640, 10 S. W. 235; Peddy v. State, 31 Tex. Cr. R. 548, 21 S. W. 542; Scruggs v. State, 35 Tex. Cr. R. 623, 34 S. W. 951; Conner v. State, 23 Tex. App. 383, 5 S. W. 189; Garcia v. State, 12 Tex. App. 340. The rule in the Cline Case was abandoned by a divided court in the opinion in Porch's Case, 51 Tex. Cr. R. 7, 99 S. W. 1122, in a case where the witness whose testimony was reproduced was dead at the time of the trial, and in Hobbs Case, 53 Tex. Cr. R. 71, 112 S. W. 308, where the witness was shown to be beyond the jurisdiction of the state. Without attempting to review the subject, the writer is of the opinion that the rule declaring the admissibility of such testimony is so generally recognized as proper that it should be adhered to. It has been recognized as the true rule not only in many of the decisions of our own court, but by the courts of last resort in most of the states of the Union, and is generally sanctioned by the text-writers. Wharton's Crim. Evidence, vol. 1, §§ 227 and 231; Wigmore on Evidence, vol. ___, art. ___, p. ___; 25 L. R. A. (N. S.) 882, note 13; 13 Ann. Cas. p. 973; Vernon's Ann. C. C. P. pp. 768 to 770, also page 27.

It appears that proof was made on the trial that R. W. Echols, the absent witness, had removed to, and was a resident of, the state of Alabama. This also appears from the bill of exception, and brings the predicate within one of the alternative provisions of article 832, supra. It is insisted, however, in the brief that there was an absence of affirmative showing that the testimony was not reduced to writing by the magistrate under the formality required by article 300, C. C. P., supra, and that, in the absence of such proof, the presumption that it had been so reduced to writing would prevail, and that presumption would disclose that the manner in which the testimony was reproduced was by secondary, and not by primary, evidence. It was held in Sullivan's Case, 6 Tex. App. 319, 32 Am. Rep. 580, that the writing under the certificate of the magistrate was primary evidence, and in the O'Connell Case, 10 Tex. App. 569, that, in the absence of proof to the contrary, the presumption of the performance of his duty by the magistrate would exist. That the testimony of a witness at an examining trial may be reproduced by oral proof has been the subject of judicial decision in a number of cases, many of which are listed in the notes in the case of the State v. Hefferman, 25 L. R. A. ...