The defendant was indicted for the murder of William Engers, and was convicted of manslaughter, and his punishment assessed at two years’ confinement in the penitentiary.
It appears from the testimony that Engers had rented land of Evans, and there arose a dispute between them as to a certain portion of the land, whether or not that particular portion- of the land was embraced in the contract. This dispute engendered bad feeling between the parties, .and a few days prior to the killing they had a difficulty hi the field, in which difficulty Engers had struck Evans and knocked him down. On the occasion of the killing, Engers was plowing in the field, and was plowing the land *382in dispute, that is, the land which both parties' claimed to be their land. There was another party in the field at the time, one Albert Ochner, who was the hired laborer of Engers. Evans shot and killed Engers. There is no dispute about the killing.
Evans claims that he killed Engers in self-defense. The evidence in regard to the cause and circumstances of the killing is conflicting. It is claimed by Evans, and testified to by his wife and his son, who state that they were present and saw the killing, that Engers was armed with a pistol, and that he was endeavoring to shoot Evans at the time Evans shot him. It is claimed on the part of the State, and testified to by the wife of Engers and another witness, that Engers at the time of the killing was unarmed, and that his pistol was at his house, hanging up in the house, and that he had but the one pistol. The man Ochner was the first person to reach deceased after he was shot, and he went from deceased to deceased’s house before any one else had reached the dead body.
The theory of the defense is, that this man Ochner took the pistol which Engers had, and also a gun which Engers had in the field, and carried them to the house. In fact this is the testimony of the wife and son of Evans. Ochner was not present to testify on the. trial. There had, at one time, been an examination of the case on habeas corpus, and upon that examination Ochner had testified. It was proved that since Ochner testified in the case he had left the country, and that his whereabouts were unknown; that diligent inquiry had been made to find him by the prosecuting attorneys and the family of deceased; that process had been issued for him, but that all these efforts to find him had proved unavailing. It was shown that, when this witness was examined on the habeas corpus trial, the defendant Evans was present in person and by counsel, and that defendant’s counsel cross-examined the witness. Upon this predicate the State offered to *383prove the statements made by Ochner upon his examination on the habeas corpus trial.
The defendant objected upon the ground that a sufficient predicate had not been laid for the admission of the evidence. The objection was overruled, and Gr. N. Al-dredge, a witness for the State, was permitted to detail the testimony of Ochner, as follows: “He stated that he was working, on the morning of the killing, in the same field where deceased was, about 400 yards distant from' him; that he heard a gun fire, and looked and didn’t see deceased; that he then went to where he was, and found his body lying behind the plow, a little in the furrow and a little quarterly; that he raised him up, and said he asked him who shot him, and deceased gasped c Evans,’ his last words. He did not pretend to say that he saw the shooting. There was a rise in the' ground between him and deceased. He saw defendant, after the shooting, going towards the house with a gun. He stated that deceased had no coat, nor did he find any arms on his body; that the gun of deceased was at his home, and his pistol was hanging on the wall by the clock; that he went to the house from the body and told Mrs. Engers; that she came to the body, and that he got a bucket of water and followed her,” etc. It will be seen from this statement of the case that the testimony of Ochner bears directly and positively upon the main issue in the case, and is therefore material. Was this evidence properly admitted ?
The testimony of Ochner was oral, and was not required to be reduced to writing, signed and certified, as in the case of trials before examining courts. There is no provision of our statutes expressly governing such testimony wTiere it is oral, but we have a statute expressly regulating such testimony wdiere it has been reduced to writing; and we are of opinion that we should look to this statute, instead of to the common law, as our guide in determining under what circumstances this *384character of testimony should be admitted. If we go to the common law for the rule, we find that such testimony is admissible in the following instances: 1. Where the witness has died since testifying. 2. Where he is beyond the jurisdiction of the court. 3. Where he cannot be found after diligent search. 4. Where he is insane. 5. Where he is sick and unable to testify. 6. Where he has been kept away by the adverse party.
When we refer to our statute for the rule, we find that such testimony, when written, is restricted to the following instances: 1. That the witness resides out of the State. 2. That since his deposition was taken he has died. 3. That he has removed beyond the limits of the .State. 4. That he has been prevented from attending the court through the act or agency of the defendant, or by the act or agency of any person whose object was to deprive the defendant of the benefit of the testimony. 5. That by reason of age or bodily infirmity such witness cannot attend. (Code Crim. Proc. art. 772.)
It will be perceived that this statute is restrictive of the common law, and confines this character of testimony within narrower limits. True, the statute exp essly refers to this character of testimony where it is reduced to writing, and does not expressly name oral testimony of the same character. But it would be a strange and inconsistent rule that would admit tire oral in preference to the written testimony, and we cannot sanction such a view of the question. We therefore hold that the oral testimony is admissible only in cases where, under the terms of the statute, it would be admissible if reduced to writing.
We are aware that in the case of Sullivan v. State, 6 Texas Ct. App. 319, it was held by this court that the testimony of a witness taken before an examining court might, on any subsequent trial of the accused for the same offense, be introduced as evidence, provided that *385after diligent inquiry the witness could not be found or' his whereabouts ascertained. This is doubtless correct common law, but after much consideration we conclude that it is not the correct rule under our statute. We are therefore constrained to overrule the opinion in Sullivan v. State, in so far as it makes testimony of this character admissible under circumstances not expressly provided for in the statute. The learned special judge who presided in the trial of this case in the court below, in admitting the testimony objected to, followed the rule laid down in Sullivan v. State, and the rule of the common law, and in so doing committed no error as the law was at that time understood; but, nevertheless, as we are of the opinion that the ruling was not in accordance with the law as it really is, and as it should have heretofore been expounded by this court, we must, for this reason, reverse the judgment of the court below.
There are other errors assigned, but they are of such a nature as are not likely to occur on another trial, and we therefore think it unnecessary to determine them.
Reversed and remanded.