
    OGBURN v. STATE.
    (No. 9366.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1925.
    Rehearing Denied Jan. 20, 1926.
    See-, ond Motion for Rehearing Denied March 3, 1926.)
    1. Criminal law <&wkey;>400(l0), 1169(10) — Proof of contents of letters not properly admitted, but harmless, in view of testimony to same effect, admitted without objection.
    Testimony as to contents of letters should not have been admitted to show that writer was resident of Oklahoma, and thus render testimony at examining trial admissible, as letters were the best evidence, but such testimony was harmless, where other testimony of writer’s residence was admitted without objection, and no issue thereon was raised.
    2. Criminal law <&wkey;l /14(2) — Bill of exceptions, stating no facts from which question can be determined, shows no error.
    Bill of exceptions, stating no facts from which court can determine questions sought to be presented, shows no error.
    3. Criminal law &wkey;>429 (3) — Certified copy of law of another state is admissible, and its amendment or repeal is matter of defense.
    Certified copy of law of another state is admissible, without showing that law was in effect at time involved; its amendment or repeal being a matter of defense.
    4. Criminal law &wkey;>829(l) — Refusal of requested instruction covered by main charge held not error.
    Refusal of requested instructions, which were fully covered by court’s main charge, held not error.
    On Application for Permission to File Second Motion for Rehearing.
    5. Criminal law <§=»543(2) — Evidence as to residence of wife in another state and permanent removal from state held sufficient predicate for admission of wife’s testimony at examining trial.
    Where wife’s permanent removal from state Was shown by husband’s undisputed testimony that she resided in Oklahoma, and evidence as to receipt of letters postmarked “Oklahoma,” a sufficient predicate was laid for admission of wife’s testimony at examining trial, despite improper admission of contents of wife’s letters and conclusions of witness.
    6. Criminal law <&wkey;543(2).
    Proof that one whose former testimony is introduced is beyond jurisdiction of court, or limits of state, may be made by circumstantial evidence.
    7. Criminal law <&wkey;>543(2) — Where husband was shown to be citizen of another state, wife’s former testimony admissible.
    Admission in evidence of wife’s testimony at examining trial on grounds of residence in foreign state was not error, where husband was shown to be a citizen of Arkansas, as, in absence of divorce, wife’s domicile would be same as husband’s.
    Commissioners’ Decision.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Lee Ogburn was convicted of bringing stolen property into the state, and he appeals.
    Affirmed.
    Keeney & Dalby and G. C. Barkman, all of Texarkana, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State,
   BERRY, J.

The appellant was convicted in the district court of Bowie county for the offense of bringing stolen property into Texas, and his punishment assessed at confinement in the penitentiary for a term of five years.

By bill of exceptions No. 1, complaint is made at proof of the contents of certain letters alleged to have been received by W. G. Preston and another witness from Marie Preston, the former wife of W. G. Preston. The contents of these letters were offered for the purpose of showing that the said Marie Preston was a resident of the state of Oklahoma at the time of the trial of this case. The state was attempting to make this proof, in order to enable it to Introduce the testimony of the said Marie Preston, given in the examining trial of the case. The letters themselves were the best evidence, and the contents thereof should not have been admitted, but this testimony was rendered entirely harmless, in view of the fact that W. G-. Preston, the former husband of Marie Preston, repeatedly testified without objection that the said Marie Preston was living in Oklahoma at the time of this trial. This testimony was not disputed and no issue was in any way raised on the proposition that the said Marie Preston did in fact live in Oklahoma at the time of the trial.

Bill of exceptions No. 2 shows no error. It states no facts from which this court can determine the questions sought to be presented. Note 21, p. 537, Vernon Sayíes’ O. O. P.

Bill of exceptions No. 3 is also without merit. This bill complains at the court’s action in permitting the state to introduce in evidence a certified copy of the law of Louisiana, making the theft of more than $100 worth of property a felony. The objection being that the certified copy does not show that said act and law was in effect at the time the automobile in this case was alleged to have been stolen, the objection is not tenable. The certified copy of the law was prima facie evidence of the present existence of the same, and, if the same had been amended or repealed, this was a matter of defense, which the appellant was entitled to show.

What has been said with reference to bill of exceptions No. 1, also disposes of bills 4 and 5.

Bill of exceptions No. 6 is so meagre as to be unintelligible, and, in any event, as explained by the trial court, it shows no error.

Complaints at the court’s failure to give appellant’s special charges cannot be sustained. In so far as they correctly state the law of the case, same are fully covered by the court’s main charge to the jury.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

BERRY, J.

Appellant earnestly contends that the facts are not sufficient to support the verdict. We have very carefully considered this complaint, and are unable to agree thereto. We think, on the contrary, that the facts are amply sufficient.

Appellant also complains at our holding that the former husband of Marie Preston repeatedly testified without objection that the said Marie Preston was living in Oklahoma at the time of the trial. We think this holding is justified by the record. The only exception contained in the transcript to the introduction of the testimony of Preston is bill No. 1. This bill simply states that, while W. G. Preston was on the witness stand testifying for the state, he was permitted to testify that for several months preceding the time which he was testifying that he had received several letters from Mrs. Marie Preston, the state’s witness in this case, which were written from Tulsa, Okl., and that in said letters she had said she was living in Tulsa, Okl. This bill shows that the testimony was objected to on the ground that the letters themselves would be the best evidence as to their contents, and that ho evidence had been introduced to show that said letters had been lost or destroyed, or that they, could not be produced. All of the objections made to this testimony were overruled and the same was admitted before the court and jury.

We stated in the original opinion that the letters themselves were the best evidence, and the contents thereof should not have been admitted, but this testimony was rendered-entirely harmless, in view of the fact that W. G. Preston testified without objection’ that the said Marie Preston was living in Oklahoma at the time óf this trial.

In view of appellant’s contention, we have again carefully considered the testimony of W. G. Preston as shown in the statement, of facts, and this record conclusively shows that, before any question of a letter was mentioned directly or indirectly by Preston, he had made the positive and direct statement that—

“She (referring- to Ms wife) is living in Oklahoma now; at Tulsa, Okl.”

The record fails to show that any objection was made to this statement, and no objection was evidently made until later on in his testimony when he began to talk about letters that he had received from her. This witness was recalled by the state, and he gave the following testimony, which, so far as this record is. concerned, was given without objection:

“Mrs. Marie Preston was my wife in 1921, and we were living together at the place where the automobile was found. We separated about two years ago. She did not move to Oklahoma immediately then. It was about a month after Mr. Jack Hosey had that case here in court. She is a daughter of Mr. Ilosey. She has been there six or eight months, and I have been hearing from her frequently since she left here. She told me she was going to live there with her father.”

The record seems to be clear to the effect that this testimony was introduced without objection on appellant’s part, as tbe only bill of exception contained, in tbe record pertaining to tbis matter clearly shows on its face that it was taken to tbe testimony given by Preston when first on tbe witness stand.

Believing that our conclusions reached in tbe original opinion are correct on tbis issue, and that no reversible error is shown in tbe case, appellant’s motion for rehearing is accordingly overruled.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals, and approved by tbe court.

On Application for Permission to Pile Second Motion for Rehearing.

MORROW, P. J.

Upon the-trial, tbe testimony of Mrs. Marie Preston, given at the examining trial, was reproduced and used against tbe appellant. Against its introduction, the point was made that sufficient predicate bad not been laid for reproducing her testimony. To meet tbe demand of tbe law touching tbe predicate, tbe state relied upon the testimony of W. G. Preston and of Mrs. Slocum. In a bill of exceptions, complaint is made of tbe. receipt of tbe testimony of W. G. Preston upon tbe subject. According to this bill, he testified that he bad received letters from Mrs. Preston, written from Tulsa, Okl., and that in said letters she said that she was living in Tulsa, Okl. Against tbe receipt of tbis testimony an objection was urged that tbe letters would be tbe best evidence of their contents.

In tbe bill complaining of tbe receipt of tbe testimony of Mrs. Slocum, it appears that, from letters received from Mrs. Preston from Tulsa, Okl., tbe witness knew that-Mrs. Preston had resided in Tulsa for some three months previous to tbe trial. On tbe sufficiency of tbe predicate and tbe admissibility -of testimony for. tbe purpose of reproduction of evidence, tbe cases of Conner v. State, 5 . S. W. 189, 23 Tex. App. 378, and Parker v. State, 18 Tex. App. 72, are illustrative of the rule which obtains in this state. Many other cases will be found collated in the case of Jamail v. State, 268 S. W. 473, 99 Tex. Cr. R. 127; also in 15 A. L. R. 529, note.

In addition to that which is contained in the bill, however, Preston testified that he and bis wife lived at Texarkana at one time. He further testified:

“ * * * But she is living in Oklahoma now, at Tulsa, Okl. I got a letter from her last Friday or Saturday, from. Tulsa, and I have received letters from her off and on all tbe time, about once every two weeks, and she has been at the same place all the time. She is with her father, and has been there about seven or eight months,'I guess. * * * Marie Preston was my wife at that time, but we are separated now, and she is living in Oklahoma with her father.”

We fail to find, by cross-examination or otherwise, that the witness Preston qualified his statement that his former wife was living in Oklahoma, or that he gave any statement that he based his opinion upon the receipt of the letters. We have perceived no testimony in the record controverting the testimony of Preston that his former wife was residing in Oklahoma with her father. Her former testimony was in writing and properly proved on the trial. The only other fact essential as a predicate for the receipt of the testimony was that her permanent removal from the state be shown. This seems to have been shown by the testimony of Preston, showing that she resided in Oklahoma, and by the admissible circumstances that both he and Mrs. Slocum had received letters from her postmarked at Tulsa, Okl.

Proof that one is beyond the jurisdiction of the court, or beyond the limits of the state, may, as well as any other fact, be established by circumstantial evidence. See Conner v. State, 5 S. W. 189, 23 Tex. App. 384; Jamail v. State, supra. No controverting evidence having been introduced, it is believed that, notwithstanding the contents of the letters' and the conclusion of Mrs. Slocum may have been improperly received, and could not be relied upon as a part of the predicate, the other testimony to which we have adverted constituted a sufficient predicate upon which to receive in evidence the former testimony of Mrs. Preston.

Preston also testified that Mrs. Preston had gone to Oklahoma some six or eight months before the present trial, and that she told him that she was going to live with her father. Preston was a citizen of Arkansas. If the predicate showing .that she was a permanent resident of Oklahoma was not adequate, her domicile, in the absence of a divorce, would apparently be the same.as that of her husband in the state of Arkansas. In such case, the reproduction of her testimony was not contrary to law.

The application to file a second motion for rehearing is overruled. 
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