W. A. Byrd v. The State, 26 Tex. Ct. App. 374

Willson, Judge. I. It was not error to admit in evidence the certified copy of the record of the mark and brand of Wilkins Brothers. It sufficiently appears from said certified copy that the said mark and brand had been recorded in Young county, and said certificate is made by the clerk of the county court of said county, which officer, under the law, is the legal custodian of the records of marks and brands for said county, and is authorized to certify thereto.

Nor was it error to permit the witness Wilkins to explain why it was that one of the brands specified in said record had not been placed upon certain of his cattle. That portion of said witness’s testimony which might, perhaps, be regarded as inadmissible was withdrawn from the consideration of the jury by the charge of the court. II. We think the court erred in permitting, over defendant’s objection, the witness Loving to reproduce the testimony of the deceased witness Nicholson, taken before an examining court.

A sufficient predicate to admit said testimony of said deceased witness does not appear to have been established. Conceding that it was satisfactorily shown that the written testimony of said deceased witness had been taken before an examining court, and that the same had been lost, it was not shown that the prosecution in which said testimony was taken was against the defendant, and that he was afforded the privilege of cross examining said witness Nicholson at the time said testimony was taken.

It was shown that the defendant was present at the examining court when said testimony was taken, but, to render such testimony admissible against him, the statute not only requires that he must have been present, but also that he must have been afforded the privilege of cross examining the witness. (Code Crim.

Proc., art. 774.) If he was not a party charged in said prosecution, and was not afforded the privilege of cross examining said witness, clearly said testimony was not admissible against him, and to admit it over his objections, without proof of facts establishing the predicate required by the statute, was material error, the said testimony being of a material character, calculated to injure the rights of the defendant.

Article 586 of the Code of Criminal Procedure, which requires ¿he clerk, in case of a change of venue, before transmitting the original papers in the cause, to make a correct copy of the same, loes not, in our opinion, require him to make such copy of testimony taken before an examining court. Such testimony is not included in the words “original papers” used in said article.

It is not required that the same shall be filed by the clerk- and kept with the papers of the cause; but, on the contrary, it is made the duty of the clerk to deliver the same to the foreman of the next grand jury, or to the district or county attorney. (Code Crim. Proc., arts. 315, 771.) When he has so delivered the same, it is no longer in his custody or under his control.

It was, therefore, not a valid objection to the reproduction by parol of the testimony of the deceased witness, that a certified copy of said testimony from the clerk of the court from whence the venue of the cause had been changed was not produced, nor its non production accounted for by the State. III. It was error, we think, to admit the testimony of the witness Tucker, over defendant’s objection, in so far as it related to the authority under which said witness acted in selling cattle in Memphis, and the disposition made by him of the proceeds of such sale.

These matters were res inter alios acta and irrelevant. It was material error, because such testimony tended to prove an important issue in the case, that is, the ownership of the cattle found in Memphis by said witness. IV. Several other supposed errors are assigned by the defendant and insisted upon as cause for a reversal of the judgxaent. We have, however, determined the only questions which we deem important, or which are likely to arise on another ■trial. Opinion delivered November 14, 1888. Because of the errors we have specified, the judgment is reversed and the cause is remanded. Reversed and remanded.