Jim Gilbreath v. The State, 26 Tex. Ct. App. 315

Hurt, Judge. 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 present, being a party thereto; that upon the examining trial Boone Halford, Georgia Halford, C. J. Clement and Holmes Barger testified, and that this testimony was duly reduced to writing and properly authenticated. Opinion delivered October 31, 1888.

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,