Appellant earnestly contends that the facts are not sufficient to support the verdict. We have very carefully considered this complaint and are unable to agree thereto. We think on the contrary that the facts are amply sufficient.
Appellant also complains at our holding that the former husband of Marie Preston repeatedly testified without objection that the said Marie Preston was living in Oklahoma at the time of the trial. We think this holding is justified by the record. The only exception contained in the transcript to the introduction of the testimony of Preston is bill No. 1. This bill simply states that while W. G. Preston was on the witness stand testifying for the State he was permitted to testify that for several months preceding the time which he was testifying that he had received several letters from Mrs. Marie Preston, the State's witness in this case, which were written from Tulsa, Oklahoma, and that in said letters she had said she was living in Tulsa, Oklahoma. This bill shows that the testimony was objected to on the ground that the letters themselves would be the best evidence as to their contents, and that no evidence had been introduced to show that said letters had been lost or destroyed or that they could not be produced. All of the objections made to this testimony were overruled and the same was admitted before the court and jury. *Page 569
We stated in the original opinion that the letters themselves were the best evidence and the contents thereof should not have been admitted, but this testimony was rendered entirely harmless in view of the fact that W. G. Preston testified without objection that the said Marie Preston was living in Oklahoma at the time of this trial.
In view of appellant's contention we have again carefully considered the testimony of W. G. Preston as shown in the statement of facts and this record conclusively shows that before any question of a letter was mentioned directly or indirectly by Preston he had made the positive and direct statement that "she (referring to his wife) is living in Oklahoma now, at Tulsa, Oklahoma." The record fails to show that any objection was made to this statement and no objection was evidently made until later on in his testimony when he began to talk about letters that he had received from her. This witness was recalled by the State and he gave the following testimony which so far as this record is concerned was given without objection: "Mrs. Marie Preston was my wife in 1921 and we were living together at the place where the automobile was found. We separated about two years ago; she did not move to Oklahoma immediately then. It was about a month after Mr. Jack Hosey had that case here in court. She is a daughter of Mr. Hosey. She has been there six or eight months and I have been hearing from her frequently since she left here. She told me she was going to live there with her father." The record seems to be clear to the effect that this testimony was introduced without objection on appellant's part, as the only bill of exception contained in the record pertaining to this matter clearly shows on its face that it was taken to the testimony given by Preston when first on the witness stand.
Believing that our conclusions reached in the original opinion are correct on this issue and that no reversible error is shown in the case, appellant's motion for rehearing is accordingly overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 570
ON APPLICATION FOR PERMISSION TO FILE SECOND MOTION FOR REHEARING.