
    FISHER et al. v. STATE.
    (No. 11161.)
    Coart of Criminal Appeals of Texas.
    Nov. 16, 1927.
    Rehearing Denied Jan. 11, 1928.
    1. Criminal law <&wkey;l092(!4) — Bill of exception, without judge’s certificate that facts forming basis of objection were true, held insufficient.
    Bill of exception in criminal case must contain certificate of judge that facts forming basis of objection are true, and mere statement of ground of objection is not sufficient, since it merely shows that such objection was made.
    2. Criminal law <&wkey;l09I (2)— Bill of exceptions should disclose ail that is necessary to manifest supposed error.
    In criminal case, bill of exceptions should be made so full and certain in its statements that in and of itself it will disclose all that is neces- . sary to manifest supposed error.
    3. Criminal law &wkey;>1144(13) — Trial court’s ruling is presumed correct, where bills of exception' are insufficient to manifest error.
    Where bills of exception in criminal case are insufficient to manifest error, reviewing court must presume that ruling of trial court in'admitting testimony objected to was correct.
    4. Larceny &wkey;>6l — Evidence held to support conviction for theft from person.
    Evidence that defendants, while in company with injured party, snatched his pocketbook, containing $72, from his pocket, and ran out of his sight, and divided the money, held sufficient to support conviction for theft from the person.
    On Motion for Rehearing.
    5. Criminal law &wkey;S43(2) — Injured party’s removal from state to authorize reproduction of his testimony at examining trial may he shown -by circumstantial evidence.
    1 In prosecution for theft from person, state ' may establish by circumstantial evidence that injured party had removed from state as basis ■ for reproducing testimony given at examining . trial at which he was witness.
    6. Criminal law &wkey;>543(2) — Testimony that for six months injured party had been absent from town where he resided, and that he said he intended to return to California, held admissible to show removal from state, authorizing reproduction of testimony at examining trial.
    In prosecution for theft from person, in which state wished to reproduce testimony of injured party, given at examining trial, on ' ground that he-had removed from state, testimony that for six months he had been absent from town where he resided, that associates had not heard from him, efforts to locate him had been futile, and that he said he lived in California, and intended to return, held competent and relevant to show removal.
    7. Criminal law <&wkey;662(6) — Statute permitting reproduction in criminal case of testimony given at examining trial by witness who removed from state held valid (Code Cr. Proc. 1925, art. 750; Const, art. I, § 10).
    Code Cr. Proc. 1925, art. 750, permitting reproduction of testimony, given on examining trial, in criminal case, when' preserved under formalities required by statute, if witness has removed from state or is dead, held not invalid as violating Const, art. 1, § 10, entitling defendant to be confronted by witnesses against him.
    8. Criminal law <&wkey;736( I) — Primarily, court should decide sufficiency of predicate for introduction of reproduced testimony of witness removed from state.
    In criminal prosecution, sufficiency of predicate for introduction in evidence of reproduced testimony of injured party, given at examining trial, on ground that witness had removed from state, held primarily for trial court to decide.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Nue-ces County; A. W. Cunningham, Judge.
    Mazie Eisher and another were convicted of theft from the person, and they appeal.
    Affirmed.
    D. S. Purl and L. Hamilton Lowe, both of Corpus Christi, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft from the person; the punishment confinement in the penitentiary for two years.

Appellants have brought forward for review six bills of exception.

An inspection of the first four bills of exception shows that they are insufficient to manifest error. No evidence verifying the truth of appellants’ objections is incorporated in said bills. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. See Branch’s Annotated Penal Code, § 209, p. 134; Edelen v. State. 103 Tex. Cr. R. 502, 281 S. W. 1078. A bill of exception should be made so •full and certain in its statements that, in and of itself, it will disclose all that is necessary to manifest the supposed error. Branch’s Annotated Penal Code, § 207, p. 131; James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612. The bills of exception under consideration being insufficient to manifest error, we must presume that the ruling of the trial court in admitting the testimony objected to was correct. The legal presumption is that the ruling of the trial court was correct, unless the bill of exception shows otherwise. Branch’s Annotated Penal Code, § 207, p. 132; James v. State, supra.

By bills of exception Nos. 5 and 6 appellants challenge the sufficiency of the evidence. The evidence is amply sufficient to support the verdict of the jury and the judgment rendered thereon.

The record discloses that appellants were in company with the injured party, Duffy, and that they snatched a pocketbook containing $72 from his pocket, and ran out of his sight. On the trial, the state introduced the voluntary statements of appellants, wherein they confessed that they took the injured party’s pocketbook from his pocket, ran out of his sight, and divided the money. Shortly after the commission of the offense officers recovered the stolen money from appellants.

Finding no error, the judgment is 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.

MORROW, P. J.

Criminating facts are embraced in the testimony of John Duffy to the effect that his pocketbook containing a sum of money was taken from his pocket by the appellants. Duffy was not present at the trial, but was a witness at the examining trial, and his testimony there given was reproduced upon the instant trial. A part of the bills of exceptions are addressed to the rulings of the court in receiving evidence of circumstances going'to show that Duffy was permanently out of the state at the time of the trial.

The evidence upon the subject embraced in the bills consisted of testimony to the effect that, at the period when the offense was eom mitted, Duffy was sojourning in Corpus Christi, and employed by a certain light company ; that at the time of the trial he had been absent from Corpus Christi for some six months; that none of his associates had seen or heard from him for six months; that the efforts of the officers to locate him under process had been futile; that Duffy, on the eve of his departure, stated that he had lived in California and intended to return there. It was competent for the state to establish by circumstantial evidence the fact that'Duffy had removed from the state, and the testimony set out in the bills was competent and relevant for that purpose. See Parker v. State, 18 Tex. App. 72; Conner v. State, 23 Tex. App. 384, 5 S. W. 189; Jamail v. State, 99 Tex. Cr. R. 127, 268 S. W. 473, and-numerous cases therein. cited.

Two other bills complain of the proof of the examining trial and of the reproduction of the testimony of Duffy. Against the receipt of the testimony of the justice of the peace to the effect that an examining trial had been had, and the identification of the written testimony of Duffy given thereon, objections were urged that the testimony was irrelevant and immaterial, and that no proper predicate had been laid for introducing the testimony of Duffy, in the absence of positive proof that he was beyond the jurisdiction of the court. The objection urged against the reproduction of Duffy’s written statement was in substance as that above mentioned, and, in addition, that the defendants were entitled to be confronted by the witnesses against them. The statute expressly permits the reproduction of testimony given upon the examining trial when preserved under the formalities required by the statute. See article 750, C. C. P. 1925. That the statute permitting the reproduction of testimony of a witness who, since testifying, has removed from the state, or is dead, is not violative of the Bill of Rights contained in article 1, § 10, of the Constitution, has been repeatedly declared, and is the settled law of this state. See precedents collated in Young v. State, 82 Tex. Cr. R. 260, 199 S. W. 479. The sufficiency of the predicate for the introduction in evidence of the reproduced testimony of Duffy was primarily for the trial court to decide. Over the objections mentioned, the trial court decided that the reproduced testimony was admissible. On appeal, the legal presumption is in favor of the correctness of the court’s ruling, unless the bill of exceptions shows the contrary. Moore v. State, 7 Tex. App. 20, and other cases collated in Branch’s Ann. Tex. P. C. p. 132, § 207, subd. 3.

The bills of exceptions, taken to the introduction of the reproduced testimony of Duffy, containing no recital of the facts which were before the trial court, do not give this court any information touching the sufficiency of the predicate, and consequently are not sufficient to inform this court that in receiving the testimony the learned trial judge was wrong. It is incumbent on one complaining of the admission of evidence to show that in receiving it the court committed error. See Brown v. State, 43 Tex. Cr. R. 294, 65 S. W. 529, and cases collated in Branch’s Ann. Tex. P. C. § 210.

Duffy’s testimony is direct and definite evidence of the guilt of the accused. It is not controverted. On the contrary, the confession of each of the appellants was introduced in evidence and contains a full confession of guilt. Moreover, there was proof that the confessions led to the finding and recovery of $72 in money ($36 from each of the appellants) which had been taken from the person of Duffy. Even if there was merit in the bills, the record is such as to demand an af-firmance of the conviction.

The motion for rehearing is overruled. 
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