Gilbreath v. State
Gilbreath v. State
Opinion of the Court
This is a conviction for embezzlement of a. horse»
It appears that there had been an examination into this charge before a justice of the peace, at which the appellant was
Upon the trial in the district court, the State, having laid the predicate by showing that the absent witnesses did not reside in this State, and that their depositions taken at the examining trial were lost, etc., over the objections of counsel for appellant, proved by two witnesses what the absent witnesses swore on the examining trial. That this was proper and legitimate is now well settled. (1 Greenl. Ev., 165; Black v. The State, 1 Texas Ct. App., 368; Dunlap v. The State, 9 Texas Ct. App., 179; Sims v. The State, 10 Texas Ct. App., 166; 71 Ga., 129; Willson’s Crim. Stats., sec. 2535.) There was no attempt to prove the contents of the lost depositions.
The facts proposed to be proved by John Clement under the circumstances of this case were, if not hearsay, immaterial, and there was no error in rejecting them.
The judgment is affirmed.
Affirmed,
Reference
- Full Case Name
- Jim Gilbreath v. State
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- 2 cases
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- Syllabus
- U Practice—Evidence—Depositions.—It is a settled rule of practice Id this State that the prosecution may reproduce by oral testimony the evidence delivered upon the examining trial, after making competent and sufficient proof that the witnesses whose evidence it is proposed to reproduce are non residents of the State, and that, since the examining-trial, their depositions taken upon that trial have been lost or destroyed. 2. Same.—The exclusion of testimony that is immaterial to any issue in the'case is not error.