
    ROBERTS v. STATE.
    (No. 5065.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.
    Rehearing Denied June 28, 1918.)
    1. Crüminal Law <⅜»1098 — Appeal—Form op Statement op Eaots.
    A statement of fact in question and answer form will be struck out, being in violation of the statute requiring such statements to be in ⅛⅜ narrative form.
    2. Criminal Law <®=>1144(7) — Appeal — Statement op Fact — Continuance.
    Where there is no statement of facts presenting to appellate court the testimony heard by-lower court on a-motion for • Continuance, the court’s ruling pn such motion will be presumed to have been justified by the evidence.
    8. Criminal Law 3=^1169(2) — Appeal — Harmless Error.
    Where a judgment was introduced in evidence, showing that the jury trying the case at which such judgment was rendered was legally organized, the court’s action in permitting the district clerk to orally testify that such jury was organized was not reversible error.
    4. Criminal Law <⅝=>400(3) — Primary and Secondary Evidence — Oppicial Capacity.
    The fact that a certain witness was a deputy district clerk at, the time of a certain criminal prosecution could be established by the oral testimony of such witness and that of the district clerk under whom he worked, without introducing records of appointment.
    5. Perjury <®=^32(7) — Evidence — Testimony-Court Stenographer.
    In prosecution for perjury committed while testifying as a witness, evidence of the testimony given by accused at the trial at which the alleged perjury was committed may be testified to by the court stenographer at such trial.
    Appeal from District Court, San. Augustine County; W. T. Davis, Judge.
    Abe Roberts was convicted of perjury, and be appeals.
    Affirmed.
    K. W. Stephenson and E. T. Anderson, both of San Augustine, for -appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of perjury and assessed the lowest punishment.

Appellant’s attorneys have filed a lengthy and forcible brief, which has had due consideration.

Prior to 1909 the stenographer’s act authorized the stenographic report of the proceedings and testimony in question and answer form to be sent to this court as a statement of facts. After that law had been in effect for some time and this court had seen the workings of it, in Baird v. State, 51 Tex. Cr. R. 824, 101 S. W. 992, it was said:

“The Legislature should pass an amendment to the present stenographic law and require a narrative form of statement of. facts to be prepared by counsel. This would save an enormous amount of unnecessary work to this court.”

In 1909 the Legislature did amend said law and require the statement of facts to be in narrative form and prohibited it to be in question and answer form. Ever since the passage of this latter act this -court has uniformly struck out and refused to consider a statement of facts unless in narrative form. Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Essary v. State, 53 Tex. C. R. 596, 111 S. W. 927; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565; Kemper v. State, 57 Tex. Cr. R. 355, 123 S. W. 131; Choate v. State, 59 Tex. Cr. R. 266, 128 S. W. 624; Hart v. State, 67 Tex. Cr. R. 496, 150 S. W. 188; Criner v. State, 71 Tex. Cr. R. 369, 159 S. W. 1059; Stephens v. State, 77 Tex. Cr. R. 30, 177 S. W. 92; Ferguson v. State, 202 S. W. 733, 734; Kitchens v. State, 203 S. W. 768, not yet officially published.

In this case the stenographer made ont a report of the case, which is made np largely of the questions and answers of the various witnesses who testified, of a great many objections made by appellant to various matters, and of the remarks and rulings of the court and of the remarks of the prosecuting attorney, none of which matters should have been contained in any statement of facts, and which are in direct violation of the statute prescribing how a statement of facts should be made. The Assistant Attorney General has made a motion to strike out and not consider the purported statement of facts because of the condition of the stenographer’s report, which should be granted, and said purported statement of facts should be struck out and not considered. However, the said report of the stenographer has been carefully read; and, even if it could be considered as a statement of facts, none of’the appellant’s assignments of error which are presented by various bills of exceptions show any error.

Appellant was indicted, as stated, for perjury growing out of his alleged false material testimony given by him in the trial of the ease of’the state against Will Olay, Jr., tried in the district court of Rusk county. The proof, if we could consider the statement of facts, without question shows that appellant testified in the trial of said Olay Case falsely as alleged in the indictment herein. The falsity of his testimony, which was material in said Clay Case, was proven by several witnesses introduced by the state, .and also by others introduced by appellant in this trial. The evidence was 'amply sufficient in every particular to sustain the verdict of the jury and his conviction.

When the case was called for. trial appellant made a motion for a continuance or postponement, claiming that he was sick and unable to stand trial at that time. Before acting upon this motion the court heard testimony thereon. At some time during this hearing appellant said:

“We want to reserve an exception to this inquiry going on in the presence of the jury.”

At that time evidently no> jury had been impaneled. Appellant’s bill does not otherwise state, although it may be inferred from his objection, that some of the venire may have been present. The bill in no way indicates that in making up the jury later any of the veniremen were asked anything about whether they heard said proceedings or testimony, and no objection is shown to have been made to any juror because of any prejudice against him in any way aroused by said inquiry. The bill does not state what testimony was introduced, nor give the testimony of any witness at all heard on this inquiry. In said purported statement of facts the first four pages of it purport to give the testimony of two witnesses only, doctors, both introduced by the appellant himself, but this testimony is not agreed to, as the testimony which was introduced on that occasion, by the attorneys for either side, nor is it in any way approved by the court as a statement of facts heard by him on that hearing. Besides, it was filed in connection with said purported statement of facts nearly three months after the adjournment of the court for the term, so that it cannot be considered for any purpose. The action of the court in hearing the testimony on the motion for a continuance and then overruling the motion must be presumed to have been clearly justified, and it doubtless was, by the facts and circumstances heard by the judge at the time. Reyes v. State, 196 S. W. 533, and cases there collated.

Appellant has another very meager bill, wherein he merely claims that the court committed an error in permitting the district clerk to swear orally 'that the jury was organized to try the issue in the case of the state against said Will Olay, Jr., and another defective bill, wherein he objected to the clerk swearing that R. E. Buckner was his deputy clerk at the time of the trial of said Olay Case, and another like defective bill in permitting said Buckner to testify that he was such deputy district clerk before, at the time of, and subsequent to, the trial of said Clay Case. Neither of these bills claim that no other testimony was introduced to prove by the records all of these facts to which he was objecting to the witness testifying orally, and as each is presented no error is shown. But if we could look to said purported statement of facts, each and every one of these facts were proven by the introduction of the record itself. The judgment of the court in the Olay Case was introduced, which showed specifically that the jury was regularly and legally organized to try, and did try, said Olay. And the’record of the appointment, affidavit, and bond of Mr. Buckner as deputy clerk was also introduced, showing that he w'as truly and legally deputy district clerk prior, at the time, and subsequent to the trial of the Olay Case. But, even if the said records had not been introduced in evidence, the oral testimony objected to was admissible anyway. Watson v. State, 9 Tex. App. 237; Hardin v. State, 40 Tex. Cr. R. 217, 49 S. W. 607; De Lucenay v. State, 68 S. W. 797; Kennedy v. State, 19 Tex. App. 633; Thompson v. State, 19 Tex. App. 614; Burrow v. Brown, 59 Tex. 457.

The state introduced the court stenographer who was and acted as such, in the trial of the said Olay Case, who testified over appellant’s objection to what appellant herein testified on that trial. This court holds that his testimony was admissible. See some cf the eases cited in 1 Branch’s Ann. P. 0. § 81.

The court did not err in permitting 'the state to ask, and the witness S. M. Davis to testify, what the appellant swore in the trial of said Olay Case, as shown hy his bill No. 20. The question asked the witness was not a leading question. 1 Branch’s Ann. P. O., § 157, and eases cited. But, even if it had been, the bill is insufficient to show any error, in the court’s permitting it to be asked and answered. Carter v. State, 59 Tex. Or. R. 75, 127 S. W. 215, and other cases cited by Mr. Branch in said section 157 and in section 159.

The court did not err in refusing appellant’s instruction to peremptorily require the jury to find him not guilty, nor in refusing his instruction that the evidence in the case only presented oath against oath, and to acquit him if they found that such was the case. At least two witnesses swore without contradiction that appellant testified to the material testimony upon which the perjury charged was based, and it was proved by several witnesses, probably as many as five or six, that his said testimony was false. His only other bill is to the argument of the district attorney. It shows no error. The argument made was based, without doubt, on the testimony legally introduced on the trial. So that, even if we could consider the purported statement of facts and all of appellant’s bills, none of 'them show any reversible error. But with the statement of facts struck out and not considered, then none of his bills could be considered. In either contingency, no reversible error is shown, and the judgment is affirmed. 
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     