
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Cbiminal Law (§ 429) — Evidence — Admissibility.
    Rev. Civ. St. 1911, art. 1748, authorizes clerks of the county court to appoint deputies, and requires such deputation to be recorded in the office of the clerk and deposited with the clerk of the district court; while articles 3687-3713 authorize such record, and copies thereof, to be introduced in evidence. Article 2287 declares that each justice of the peace shall be ex officio notary public; articles 9-14 authorizing such officials to administer oaths and take affidavits. Held1 that, where a county clerk testified that he had appointed another as deputy, but that the deputation had been mislaid, a record of such deputation, which was acknowledged before a justice of the peace, is admissible in evidence. ’
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1018, 1020; Dec. Dig. § 429.]
    2. Perjuby (§ 29) — Pbosecution—Evidence.
    Where an indictment for perjury averred that accused falsely testified on the trial of her husband that he did not strike her with a stick at a time named, evidence that she did so testify is admissible, but not evidence as to other matters occurring in the trial of the husband.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§-97-106; Dee. Dig. § 29.]
    3. Cbiminal Law (§ 1153) — Appeal—Separation of Witnesses — Discretion of Court.
    In the absence of anything showing an abuse of discretion, the refusal of the trial court to put some of the prosecuting witnesses under the rule will not be held erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066; Dec. Dig. § 1153.]
    4. Criminal Law (§ 1119) — Appeai>-Bill of Exceptions.
    A bill of exceptions complaining of the refusal of the trial court to put some of the prosecuting witnesses under the rule presents no error, where it does not show what such witnesses testified to.
    [Ed. Note. — Bor other cases, see Criminal Law, Cent.Dig. §§ 2927-2930; Doc.Dig. § 1119.]
    5. Criminal Law (§ 412) — Evidence—Declarations.
    Where defendant was accused of falsely testifying on the trial of her husband that he did not strike her at a given, time, evidence as to declarations by accused upon being examined by a physician, and of her statements to the county judge, tending, to .show that she was beaten, is admissible to' show that she falsely •testified.
    , [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 894-917, 919-935; Dec. Dig. § 412.]
    6. Indictment and Information (§ 81) — Validity — Name.
    " An indictment, which named accused in numerous places, is not invalid because in one place the wrong surname was used;. it appearing that that portion could he disregarded as surplusage, and that in all .other respects the indictment was certain and could not have” misled accused.
    [Ed. Note. — For other cases; see Indictment and Information, Cent. Dig. §§' 216-224; Dec. Dig. § 81.]
    7. Criminal Law (§ 1090) — Appeal—Bills of Exceptions.
    In the absence of bills of exceptions, objections to the admission and rejection of evi-. dence cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, -2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]'
    Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
    ■ Bettie Smith was convicted of perjury, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section N.TJMBER.in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and' convicted of, perjury. In the trial of her husband appellant appeared and testified-, being sworn by Clifton Wells, who it is alleged was deputy clerk of the county court of Nacogdoches county. The county •clerk, Mr. 0.: F. Baxter, appeared and testified that he had appointed Clifton Wells his deputy; that the deputation'had been mislaid, but he thought it was in his office, and probably could be found, although he had looked and failed to find same. He produced the record of deputation, wherein was recorded the deputation of Mr. Wells, which was introduced in evidence. • It appeared therefrom that the deputation had been acknowledged by Mr. Baxter before J. F. Per-ritt, justice of the peace and ex officio notary public. The oath was administered to Mr. Wells also by this officer. All this testimony was objected to by appellant on various grounds, all of which are stated in the bills of exception. Article -1748 of the Revised Statutes authorizes clerks of the county -court to appoint deputies, and requires such, deputation to be recorded in his office .and deposited with the clerk of the district court, and chapter 4 of title 53 of the Rev. Stats, authorizes this record, and copies thereof, to be introduced .in evidence. Chapter I of title 41 provides for election and qualification of justices of the peace, and article 2287 provides that each justice of the peace shall be commissioned as an ex officio notary public. Title 2 of the Revised Statutes authorizes justices of the peace to administer oaths, affidavits, and affirmances; consequently none of these bills present error, and the court did not err in admitting the record of the deputation,in evidence, and it sufficiently established that Mr. Wells had been legally appointed a deputy county clerk, and the oath administered by him was binding. The deputation, while not expressed in the best language, yet was sufficient, in law.

The indictment in this case alleged that appellant had sworn on the trial of her husband that he (Walker Smith) did not strike her with a stick at the time named, which said statement was material to the issue involved In said trial, when in truth and in fact said Walker Smith did strike the appellant with a stick, which fact' she well knew. All testimony which would go to show that she did' or' not so testify on the trial of Walker Smith would be admissible, but the testimony of witnesses as to other matters testified about on that trial would be irrelevant and immaterial, and the court did not err in so holding and excluding such evidence. The issue in this case was, Did she so testify, and was it true or false? and these othe'r matters sought to be inquired about would shed no light on that issue, but would only tend to mystify and becloud the real issues in' the case.

It appears that the Honorable F. P. Marshall, county judge, J. L. Burrows, constable, and O. F. Baxter, county clerk, were used by the state as witnesses- in the case, and although' the rule had been demanded these witnesses were by the court excused .from the rule. This is a matter within thé sound discretion of the trial judge, and in the absence of anything showing that his action in this instance was an abuse of this discretion these bills present no error. In addition to this, in neither of these bills is it shown what either of the witnesses testified to; so it is not presented in a way which would authorize us to review the matter, or judge whether or not the court did abuse his discretion.

That Dr. Loekey examined appellant on the day it was alleged her husband struck her, and what she then told him, would clearly be admissible in this case when she was on trial. Appellant’s objections might be sound if Walker Smith was on trial; but in this case Bettie Smith was on trial, and her statements, when not under arrest, would certainly be admissible against her. It was also proper to permit Judge Marshall to testify what appellant told him, as it all tended to show that she had sworn falsely on the trial of Walker Smith, when she testified he did not strike her.

The court did not err in overruling the motion in arrest of judgment. The fact that the words “Bettie Miles” are used at one place in the indictment where it was intended to say “Bettie Smith” does not render the indictment uncertain; nor could it have misled the appellant. The indictment had alleged that the offense was committed by appellant, naming her, by testifying to certain facts on the trial of Walker Smith, which said statements were false, and after naming her as Bettie Smith at least a dozen times in the indictment to, at near the close of the indictment, inadvertently call her “Bettie Miles,” but following it with an allegation again giving her her correct name, does not vitiate the indictment; especially is this true when the sentence containing the incorrect name can be treated as surplusage, and sufficient still remains to charge the offense. Wampler v. State, 28 Tex. App. 353, 13 S. W. 144; Musquez v. State, 41 Tex. 228; Bartley v. State, 47 Tex. Cr. R. 41, 83 S. W. 190; Chessley v. State, 74 S. W. 548; Eddison v. State, 73 S. W. 397.

There are several matters complained of in the motion in regard to admitting and rejecting testimony to which no bills of exception were reserved, at least the record before us contains no such bills; consequently the matters ar.e not presented in a way we can review them.

No special charges were requested, and we have carefully reviewed those grounds in the motion complaining of the charge of the court, and none of them present error.

The judgment is affirmed.  