Young v. State

231 S.W.2d 428, 155 Tex. Crim. 97, 1950 Tex. Crim. App. LEXIS 1759

Opinion

WOODLEY, Judge.

Appellant was convicted of robbery by assault, and the jury assessed his punishment at five years’ confinement in the penitentiary.

The state, over the objection of appellant, offered in evidence the testimony of the alleged injured party, Rufus A. Quillin, as given on the examining trial of appellant.

Without such testimony, there is not sufficient evidence to sustain the conviction.

We find no proof in the record to show that the witness was dead or was beyond the limits of the state, or proof of any fact under which such testimony might be reproduced under the terms of Arts. 749-750, C.C.P.

In the absence of such proof, appellant was entitled to be confronted with the witnesses against him.

The reproduction of such character of testimony is not permissible unless it appears that the state has brought itself within the exceptions provided in said Arts. 749-750, C.C.P. See Smith v. State, 142 Tex. Cr. R. 349, 152 S.W. 2d 751; Nixon v. State, 53 Tex. Cr. R. 325, 109 S.W. 931; 12 Tex. Jur. Sec. 217, p. 526; 18 Tex. Jur. Secs. 111-112, p. 199.

The judgment is reversed and the cause remanded.

Opinion approved by the court.