As a predicate for the reproduction of his testimony it was proven that Smithson, the main prosecuting witness who testified at the examining trial, was dead, and also that the testimony taken in writing at said trial, including Smithson’s, was in all probability destroyed in the fire which burnt up the Bastrop court house. No error was committed in permitting the witnesses Perkins and Hearn, who had heard Smithson testify at said trial, to reproduce the deceased witness’s testimony. And whatever the former rule on the subject may have been, it is now well settled that, to reproduce testimony given at a former trial by a witness who has since died, the person called to prove it may state its substance if unable to repeat its precise language. (Simms v. The State, 10 Texas Ct. App., 132, and authorities cited.) As part of Smithson’s testimony, what transpired between himself and Stanley, who brought the gun to him for sale, was competent and necessary to elucidate and explain the subsequent connection of both Smithson and defendant with the gun, which was left by Stanley in a store house at Elgin, at the instance of Smithson, to await defendant’s coming, and we can not see that the court erred in admitting the testimony.
The witnesses who reproduced Smithson’s testimony stated that Smithson had sworn on the examining trial that, when defendant came to Elgin, he claimed the gun as his property, and that Smithson then arrested him for theft of the gun. This portion of the testimony with regard to defendant’s claim of the gun was the most damaging evidence against him. •
. In his motion for new trial, defendant set up newly discovered evidence, to wit, the evidence of one Pinkard, a deputy sheriff of the county, who was present when the arrest took place, and who in his affidavit stated in substance that nothing *666was said by defendant or Smithson about the gun before the-arrest, and that defendant did not claim the gun before or after his arrest.
Opinion delivered May 25, 1883.Looking to the circumstances attending the case, the fact that Smithson was dead—that several years had elapsed since-his testimony was given at the examining trial—that the proposed new testimony was that of a witness who was himself present at the time of the occurrence, and who from his official position would likely remember what criminative facts transpired—that the testimony as given was from parties who were-not present, and who were relying upon their recollection of what another said about it—taking, we say, all these facts into-consideration, we think the court should have granted the new trial in order "that defendant might have the opportunity to avail himself of such newly discovered evidence.
The judgment is reversed and the cause remanded.
Reversed and remanded.