
    OGBURN v. STATE.
    (No. 7946.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1924.)
    1. Criminal law &wkey;>543(2) — Testimony of non-residence of witness held insufficient to reproduce his testimony given at preliminary hearing.
    Testimony of a sheriff admitting that he knew nothing about a witness’ residence, except what was told him when he visited the town where witness was supposed to live and found him away, was insufficient predicate to justify reproduction of the witness’ testimony at a preliminary hearing two years before trial.
    2. Criminal law &wkey;>543(2) — Lapse of two years between trial and preliminary hearing held to preclude reproduction of witness’ testimony of nonresidence.
    Testimony of a witness at the preliminary hearing that he lived outside the state was insufficient to establish his nonresidence at time of trial, two years later, and precluded reproduction of such testimony.
    3. Criminal law <&wkey;643(2) — Hearsay evidence could not establish nonresidence of witness to justify reproduction of testimony.
    The fact of nonresidence of a witness justifying reproduction of his testimony given at a preliminary hearing could not be established by hearsay evidence.
    4.Criminal law <&wkey;35l(IO), 671 — Officer’s testimony of unsuccessful efforts to get defendant’s brother as witness inadmissible as crim-inating, and, if offered as a predicate for former testimony, offer should not he in jury’s presence.
    Testimony of an officer of his unsuccessful efforts to get defendant’s brother to testify for the state would be inadmissible as criminating evidence, and, since it might lead the jury to believe that witness thought his brother guilty or that defendant was keeping him away, if offered as a predicate for reproducing former testimony, it should not have been brought out , in the jury’s presence.
    Appeal from Criminal District Court, Bowie County; Hugh Carney, Judge.
    Lee Ogburn was convicted of theft of an automobile, and he appeals.
    Reversed and remanded.
    G. O. Barkman and Keeney & Dalby, all of Texarkana, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Bowie county of theft of an automobile, and his punishment fixed at five years in the penitentiary.

A colored doctor named Thompson lost his Ford car on the night of the 14th of June. Some weeks later he recovered it. He said it was taken between 8 and 10 o’clock on said night. We have examined the record very carefully, and the only evidence offered by the state which seems to connect the appellant with the taking of the car in question is the testimony given by his brother, Virgil Og-burn, on the occasion of the preliminary hearing of appellant had in July a few weeks after the alleged loss of his ear. The brother said in said testimony that he lives in Louisiana, and that four or five days before the 19th of June, 1921, he was awakened in the early morning about daybreak by Dorris Parker and Lee Ogburn (appellant), who left a Ford car in front of his garage. The defense offered in evidence another' portion of the statement of Virgil Ogburn as given on said preliminary trial in which he said that he thought it was Lee Ogburn and Parker who brought the car that morning; that it was before daylight and that he had just awakened and that there were two men in the car; some one hollered and said, “Hello, Mr. Og-burn,” and that awakened him, and he said, “Hello”; the man then said, “I want to leave my car here,” and witness said, “All right.” Witness was gfetting up when he did this talking. That was the only view he had of the parties. He further said that he had never seen appellant around this car at all unless ,it was lie wlio came there that morning.

In addition to the testimony of this witness given at the preliminary trial which was reproduced on the instant trial, the state also was permitted to reproduce the testimony of one Frank Moore, who stated that Dorris Parker and Virgil Ogburn came to his house and left an old car in his garage, and that a day or two later he discovered that the old ear had been taken out and a comparatively new car substituted therefor, which new ear was later taken away from his house and turned over to the officers and seems to have been the car taken from prosecuting witness Thompson. This witness did not attempt to say that he had ever seen appellant doing anything with or having any connection with said car.

Appellant strenuously objected to the reproduction of the testimony of said two witnesses. The matter has been carefully considered. The preliminary trial was had in July, 1921,, and the instant trial was had in February, 1923. In order to justify the •reproduction of the former .testimony of a witness who is absent at the trial upon the ground that he is a nonresident or dead, the facts must sufficiently make out a predicate. In a case such as this where the absence of the witnesses from the state is relied upon as the fact justifying the reproduction of such testimony, the question is the establishment by proof of the |act that the witness is not within this state at the time of trial. We have carefully examined the record with reference to the sufficiency of the proof offered on this point. The state introduced Sheriff Baker, who testified that on Thursday before the trial he went over to the town of Gilliam, La., where the absent witnesses Virgil Ogburn and Moore were supposed to live. He testified that he did not know where Virgil Ogburn lived, but understood that he lived there at Gilliam, La., but he was away from home in the oil field when he visited Gilliam. He also testified that he made an effort to find Frank Moore, and that he talked to a doctor, a drug man, and two clerks, and that a merchant there in Gilliam told him that Moore lived there. On cross-examination Mr. Baker, said that he knew nothing about the residence of these witnesses of his own knowledge and that all he knew about it was what people at Gilliam told him on the occasion of his visit. He did not see either of the parties and knew nothing of their residence, as stated, upon his own knowledge. We do not think this a sufficient predicate. The fact that a witness stated that he lived out of the state nearly two years before the trial could not be sufficient to establish his residence at the time of the trial. Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586. This court has always held that the fact of nonresidence could not be shown purely by hearsay. Scruggs v. State, 35 Tex. Cr. R. 624, 34 S. W. 951; Nixon v. State, 53 Tex. Cr. R. 325, 109 S. W. 931;. Anderson v. State, 74 Tex. Cr. R. 621, 170 S. W. 142. Under these facts, we think the learned trial judge in error in permitting the state to reproduce the testimony of said absent witnesses. The case would have to be reversed for this reason because, in the absence of the testimony of Virgil Ogburn, there is no shadow of connection shown between appellant and the alleged stolen car.

We further observe that the ‘testimony of Officer Richardson setting out at length the efforts that he had made to get the witness Virgil Ogburn to court would be inadmissible as criminating evidence, and same would be capable of injury to appellant. The testimony of said former sheriff on this point would seem to be admissible only as a part of the predicate for establishing the admissibility of the testimony sought to be reproduced, but it ought not to be brought out in the presence of the jury. Testimony that repeated efforts were made to get before the court the brother of the appellant, which efforts were unsuccessful, might easily lead the the jury to believe that the reason the witness declined to come to court or evaded process was because he believed his brother, the appellant, to be guilty, or because appellant kept him away.

•For the error mentioned, the judgment of the court below will be reversed, and the cause remanded. 
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