Menges v. State

Willson, Judge. Defendant’s ninth bill of exceptions is well taken. A sufficient predicate for the admission of the testimony of. Gorman, which testimony had been taken before an examining court, was not laid by the State. It was not shown that said Gorman resided out of this State, or had removed beyond the limits of this State, or that he was dead, or that he had been prevented from attending the court through the act or agency of the defendant, etc. (Code Crim. Proc., Arts. 772, 773, 774.) The ere absence of the witness out of the State did not render his testimony admissible. (Cooper v. The State, 7 Texas Ct. App., 194; Pinkney v. The State, 12 Texas Ct. App., 352; Evans v. The State, 12 Texas Ct. App., 370.) This testimony was material, and its admission over the objections of the defendant was error for which the conviction must be set aside. As to other testimony admitted over defendant’s objections, we perceive no error. Other questions presented in the record are not considered, because of a character not likely to occur on another trial. Because of the error of admitting the testimony of Gorman, the judgment is reversed and the cause remanded. Beversed and remanded.