With regard to the admissibility in evidence on the final trial of written testimony taken on the examining trial, the statute makes the same rules applicable as are provided for the reading of depositions in criminal actions. Code Crim. Proc. art. 774. And it is-provided that depositions “ shall not be read unless oathbe 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 had 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.” Code Crim. Proc. art. 772.

Oath must be made of the existence of one or more of the facts above stated as a predicate to the introduction of such testimony. This oath is not required to be made in the form of an affidavit, though such form would do; *355nor is any formal independent oath necessary; but an oath as to the fact relied upon must be made in some way.' It may be made and proved by the testimony of a witness, as any other fact in the case. Post v. State, 10 Texas Ct. App. 579. An oath as to the fact, or proof of the fact by a witness under oath, is indispensable. Without this the evidence is indispensable. Ballinger v. State, 11 Texas Ct. App. 323.

In the case before us the court, over objection of defendant, permitted the prosecution to read in evidence the testimony of Wm. Dumphy, taken on the examining . trial, without requiring the statutory oath as to any one of the facts making such evidence legal, and no witness examined testified to facts sufficient to establish the predidate,— the only evidence at all approaching the matter being the statement of the witness Otto Burwitz, that “ witness did not know where Dumphy was.” This was not sufficient. Nor does the explanation given.by the judge to defendant’s bill of exceptions obviate the difficulty. The fact “that' attachments for the party had been issued to several counties and returned not found,” nor the fact that witness “appeared to be a railroad man, without any permanent place of abode, and the State had no reasonable ¡expectation of ever being able to procure the attendance of said witness,” cannot do away with the necessity for the -statutory oath.

Because the court erred in admitting the testimony -without a proper predicate, the judgment is reversed and the cause remanded

Reversed and remanded.