The full details of this case can be seen at 235 S.W.2d 446 (1950)
CUMPSTON v. STATE. No. 24862. Court of Criminal Appeals of Texas.
October 25, 1950. Rehearing Denied January 17, 1951.
Tyson, Dawson & Dawson, and Doyle Pevehouse, all of Corsicana, for appellant.
Charles T. Banister, County Attorney, Corsicana, Stuart B. Lumpkins, County Attorney, Waxahachie, William Justice, Special prosecutor, Athens, and George P. Blackburn, State's Atty., of Austin, for the State.
This is a conviction for murder without malice, with punishment assessed at confinement in the penitentiary for two years.
447*447 Appellant was a deputy city marshall of the City of Blooming Grove, Texas. The killing, which appellant admitted, grew out of an arrest or an attempted arrest of the deceased and his companion.
The fact issue is whether the killing was in self-defense.
In the light of the questions presented for review, an extended statement of the facts is not deemed called for.
The offense was alleged to have been committed on March 5, 1949, in Navarro County. Two trials in that county failed of a final judgment. Appellant's motion for change of venue was granted, and the case was transferred to Ellis County, where the instant trial was begun on January 9, 1950, and conviction had.
Upon each of the former trials Raymond McGraw had testified for the state. His testimony supported the theory of the state and contradicted appellant's theory of self-defense.
Upon the trial of this case the witness McGraw was absent and the trial court permitted the state, over appellant's objection, to introduce in evidence, by reading from the transcription of the official court reporter made at the second trial, portions of the testimony of the witness.
The objection to such testimony was that a sufficient predicate had not been shown to authorize the reproduction of the testimony of the witness.
Appellant's motion for rehearing is overruled.
Opinion approved by the Court.