
    GAMBOA v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.)
    1. Witnesses (§ 331%) — Contradiction — Impeachment — Prior Testimony.
    Where, in a prosecution for fraudulent conversion of a borrowed horse, defendant claimed that he had bought the horse from complainant and testified that, at the time of the purchase, V., an absent witness, was present and knew of the trade, Y.’s testimony at the examining trial that he knew no'thing about the case was inadmissible to impeach accused.
    [Ed. Note. — For other cases, see Witnesses, Dee. Dig. § 331%.]
    2. Ceiminal Law (§ 541) — Testimony at.
    Testimony of an absent witness cannot be introduced to impeach accused as a witness in his own behalf without proper predicate by proof that the witness is either dead or beyond the jurisdiction of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1231; Dec. Dig. § 541.]
    3. Larceny (§ 52*) — Horse Tiieet — Evidence.
    Where, in a prosecittion for fraudulent conversion of a horse alleged to have been obtained under a contract of borrowing, defendant claimed that he had purchased the horse from prosecutor and it appeared that he had possession thereof for several months before he sold1' it and before prosecutor sought to have him arrested, evidence that prosecutor had not inquired concerning defendant or the horse or asked the sheriff to investigate the matter and find accused was admissible.
    [Ed. Note. — For other eases, see Larceny, Cent. Dig. §§ 137, 147; Dec. Dig. § 52.]
    Appeal from District Court, Hidalgo County; W. B. Hopkins, Judge.
    Francisco Gamboa was convicted of fraudulent conversion of a horse, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & ítep'r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted for the fraudulent conversion of a horse obtained by him under a contract of borrowing, as alleged in the indictment. The state’s contention is that appellant borrowed the horse from Villareal, and under an understanding with Villareal that he was to use the horse for three or four days, or a few days. It is further shown by the state that appellant had had the horse several months when he sold him. Appellant’s theory is that he purchased the horse from Villareal, paying him $35 as a consideration. After the sale of the horse, appellant was arrested, charged with theft by conversion. Without going into the bills of exception seriatim, they present two leading questions: First, that the state was permitted to reproduce testimony of a witness named Vasquez without laying the predicate for reproducing the testimony by showing he was dead or absent from the state; second, appellant was refused testimony intended to meet the testimony of Villareal to the effect that he (Villareal) inquired about his horse only to ascertain where it was, either or both.

In regard to the first proposition, the state contends that the testimony of Vasquez was introduced for the purpose of impeaching the defendant, who testified in his own-behalf. Appellant did testify, and, among other things, stated that, at the time he bought the horse from Villareal, the absent witness Vasquez was present and knew of the trade. On the examining trial Vasquez testified and used about this language that he knew nothing about the case.* The testimony consists of but a few lines, and details of the transaction were not gone into, and, in fact, he seems not to have been asked in regard to the sale. His testimony, as before stated, is that he knew nothing about the case. This testimony did not impeach the defendant. If Vasquez had been there and testified, as he did in the examining trial, that he knew nothing about the case, and would have further testified that he did not know of the sale, was not present, nor saw the sale, it would have been but contradictory of the defendant’s testimony, and not an impeachment of defendant’s testimony.

Again, it was not permissible to use the absent witness’ testimony unless a proper predicate had been laid and the witness shown to have been dead or beyond the jurisdiction of the court. The state did not lay the predicate in any way or undertake to do so in order to reproduce the testimony of the witness.

In regard to the second proposition, we are of opinion that appellant was entitled to show, as he offered to do by the sheriff, if not others, that Villareal did not inquire of them in regard to defendant or his horse, or ask the sheriff to investigate the matter and find the defendant. The sheriff would be naturally the man of all others, he being the sheriff, to whom Villareal should have gone to ascertain the location of his horses and the defendant, and the arrest of defendant, if in fact he converted the horses. This would seem to. be made stronger by reason of the fact that it had been several months after appellant had obtained possession of the horses before appellant sold it or he was sought or arrested. Villareal’s discovery came very suddenly after he had sold the horse, only being a very short time, a few days at most. Villareal testified he had made such inquiries.

For these reasons, this judgment is reversed, and the cause remanded.  