The opinion
ON MOTION FOR REHEARING.
MORROW, Presiding Judge.
The deceased, Bura Browning, was struck by the appellant with a baseball bat. At that time the appellant, the deceased and some of the witnesses were at a place called Newsome, situated in Camp County. The party left Winnsboro in Wood County, at about eleven o’clock at night on the 25th day of October, 1925, and the tragedy occurred sometime later that night.
From Bill of Exceptions No. 2 we learn that at some timé antecedent to the trial of the appellant for the homicide, he was tried in the District Court of Wood County for the offense of driving an automobile while under the influence of intoxicating liquor, the transaction upon which that prosecution. was founded having also taken place on the night of October 25, 1925. Upon the trial of the case last mentioned in Wood County, the witness Corbett, who was at that time a resident of the State of Oklahoma, had testified that on the night of October 25, 1925, the appellant came just before dark to the Red Front Filling Station in Winnsboro, Wood County, and there remained for an hour or more, during which time the witness Corbett had an opportunity to observe the appellant, who was not under the influence of intoxicating liquor. On the trial for the homicide at present under consideration the appellant sought to reproduce the testimony of Corbett given at the trial in Wood County. In the bill it is stated that Corbett was still a resident of the State of Oklahoma; that the appellant had expected to obtain his attendance at the present trial but failed to do so, but that he remembered the testimony given by Corbett on the previous trial and desired to state it to the jury.
In his motion for rehearing the appellant challenges the correctness of the ruling of this court on the original hearing to the effect that in declining to permit the reproduction of Corbett’s testimony the learned trial judge committed no error. It occurs to the writer
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that the facts revealed by the bill of exceptions touching the residence of Corbett at the time of the previous trial and the present trial suggest that as a predicate for reproducing the testimony of Corbett, the appellant should have given some satisfactory explanation of the failure to take depositions, which he was privileged to do by the terms of Art. 749, C. C. P., 1925. That the witness is not available seems to be an element of the predicate for the reproduction of testimony. In Wigmore on Evidence, 2nd Ed., Vol. 3, Sec. 1402, the following language is found:
“The principle upon which depositions and former testimony should be resorted to is the simple principle of necessity, — i. e. the absence of any other means of utilizing the witness’ knowledge.” Aside from the question just mentioned, an essential element of the predicate for the reproduction of testimony is the actual or substantial identity of the issue. On the subject we quote from Wig-more on Evidence, supra, Sec. 1387:
“The
issue
on the occasion when the former testimony or deposition was given must have been substantially the same, for otherwise it cannot be supposed that the former statement was sufficiently tested by cross-examination upon the point now in issue. Conversely, it is sufficient if the issue was the same, or substantially so for the purpose.”
In the present instance, an'analysis or discussion of the court decisions is deemed unnecessary as the facts set forth in the bill complaining of the ruling of the court make manifest that the proffered testimony was but collateral to and remote from the issue on the present trial.
The motion is overruled.
Overruled.