
    GREEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 12, 1910.
    Rehearing Denied Dec. 21, 1910.)
    1. Criminal Law (§ 398) — Evidence—Best Evidence.
    Where there is written evidence of a fact in issue, the writing, whether required by law or not is, as a general rule, the best evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 879; Dec. Dig. § 398.]
    2. Criminal Law (§ 1091) — Review—Bill of Exceptions.
    To obtain a review of contested matters, the bill of exceptions must be so complete within itself as to show error.
    [Ed. Note. — For other cases, see Criminal Law, Dee. Dig. § 1091.]
    3. Criminal Law (§ 1111) — Review—Bill oe Exceptions.
    Where accused accepts a bill of exceptions with an explanation of the court, he is bound by the bill as explained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec: Dig. § 1111.]
    4. Criminal Law (§ 1091) — Review—Bill of Exceptions.
    A bill of exceptions complaining of the admission of evidence on a trial for perjury committed by accused while testifying for a defendant in a civil action in justice’s court, which recites that the justice testified that he was a justice and was familiar with the records in his court, that same were kept by him and in his possession but that he did not have the dockets with him, and that the court permitted the justice to testify as to the contents of certain records in a civil suit that had been pending in his court notwithstanding the objection of accused that the records were the best evidence, and which is approved with the explanation that the justice testified that there was such a civil action on his docket, that it was tried by him without a jury, and that accused appeared as a witness for defendant, and that the justice rendered judgment for defendant because of the testimony of accused, does not show within itself that any error was committed because it does not state what records were admitted in evidence, and because it does not negative the fact that matters essential to show jurisdiction of the justice were not in fact admitted.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1091.]
    0. Criminal Law (§§ 763, 764) — Instructions — Weight oe Testimony.
    A charge that the jury, if believing the testimony of named witnesses, should either convict or acquit, is obnoxious to the statute denying the court the right to charge on the weight of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-174S, 1752, 1768, 1770; Dec. Dig. §§ 703, 764.]
    6. Perjury (§ 37) — Evidence—Instructions.
    Where, on a trial for perjury based on accused falsely testifying in a civil action between third persons that he had dug a well 54 feet deep, the evidence was conflicting, and several witnesses testified that, if a well was left standing for a year or more without casing, the same would run together, a charge that if accused dug a well 54 feet deep, and it filled up or there was a reasonable doubt thereof, accused must be acquitted, and, if employés of accused drilled a well 54 feet deep, accused was not guilty, and if he had been informed by his employés that the well was 54 feet deep, and he believed the statement, he was not guilty, etc., was sufficient.
    [Ed. Note. — For other cases, see Perjury, Dec. Dig. § 37.]
    7. Criminal Law (§ 1111) — Bill of Exceptions— Sufficiency.
    A bill of exceptions touching a matter separately reserved, and not contained in the statement of facts, must be tested solely by reference to its contents.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1111.]
    Appeal from District Court, Scurry County; Cullen O. Higgins, Judge.
    Sid Green was convicted of perjury, and he appeals.
    Affirmed.
    McGregor & Gaines, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

On April 6th of this year, in the district court of Scurry county, appellant was convicted on a charge of perjury, and his punishment assessed at two years’ confinement in the penitentiary.

The perjury charge grew out of the testimony of appellant in a justice court in Scurry county in a case in which one Stahl was plaintiff and appellant was defendant. In this case it seems from the record Stahl had sued appellant for $98.90, and we gather that in the case appellant had filed a counterclaim for drilling a well 54 feet deep. On the trial in the justice court appellant testified that he had drilled the well to this depth, whereas there was much testimony to the effect that the well had not been drilled more than about 8 or 9 feet.

The record contains three bills of exception, in only one of which is there any possible merit. The third bill recites that during the progress of the trial the witness Roberts was placed on the stand, and testified that he was justice of the peace of precinct No. 2 of Scurry county, Tex., and was familiar with the records in his court, and that same were kept by him and in his possession, but that he did not have said dockets with him, and “thereupon the court permitted said witness to testify as to the contents of a certain record in a civil suit that had been pending in his court wherein Joe Stahl was plaintiff and Sid Green was defendant, to all of which testimony defendant then and there in open court excepted for the reason that the records were the best evidence of what occurred in said court.” This bill is approved by the trial court with this explanation: “That, A. W. Roberts testified upon the point raised that there was such a case as was inquired about upon his docket, and that it was tried by him without a jury, and that the defendant appeared as a witness in his own behalf in said cause during the trial, and testified to matters alleged in the indictment, in substance, and that be rendered judgment in defendant’s favor on bis plea of counterclaim supported by tbe testimony of tbe defendant, Sid Green, to tbe effect that be bad dug a well 54 feet deep for Joe Stabl, and this testimony was admitted to show tbe materiality of tbe defendant’s testimony before tbe justice court, and to prove tbe allegations in tbe indictment, and there was nothing that was inadmissible admitted.” On this bill appellant submits the proposition that, inasmuch as it appeared that there was written evidence of tbe fact in issue, the writing is always tbe best evidence, and that this is true whether tbe memorandum in writing was required by law or not. In support of this general proposition, an able and elaborate argument is submitted. That the contention, as a general proposition, is true, does not admit of doubt. After, however, a careful inspection of tbe record, we do not believe that tbe point made is here available. We have quoted literally above tbe purport of the bill of exceptions. It will be noticed that it does not state what paper or papers, what record or records were admitted in evidence on the trial of this case, nor does it negative tbe fact that tbe matters essential to show jurisdiction were not in fact admitted. If we look to the explanation of tbe trial court, it would seem that tbe testimony of this witness was propprly limited to such matters as parol testimony might be admitted to establish. Again, if we look to the statement of facts in tbe case, it appears that tbe account sued on was admitted in evidence. It is a well-settled proposition that, to obtain a review of contested matters in this court, tbe bill of exceptions must be so complete within itself as to show error. This requirement of tbe law has not been met in this case. Again, it is well-settled that, where a party to a suit accepts a bill of exceptions with the explanation of tbe court, be is bound by tbe bill as so explained. Testing tbe bill by this rule, it seems clear that it does not show within itself that any error was committed.

2. Tbe matters contained in tbe other bills of exception are not of sufficient moment or gravity to require discussion. There is in tbe motion for new trial a very general complaint of a charge of tbe court.. It is as follows: “Tbe court erred in his charge to the jury ‘that if you believe that tbe defendant dug a well 54 feet deep, and if it filled up, or if you have a reasonable doubt thereof, you will acquit the defendant,’ for the reason that the court failed to charge the jury that if they believed tbe testimony of five witnesses, to wit, T. P. Wright, O. M. Rhea, Mitt Kirkus, Jim Adams, and White Clark, that if said well bad been left standing for a year or more without casing that tbe same would run together and cement back together almost tbe same as if never been dug, and that tbe court failed to charge tbe jury that if said well bad run back together or caved in was upon tbe weight of tbe evidence and to convict the defendant unless same bad been filled up, as is more fully shown by bill of exceptions No. 2.” Referring to the record, there is no bill of exceptions No. 2 comprised in it. That it would have been improper for tbe court to have instructed tbe jury that, if they believed the testimony of certain named witnesses, they should either convict or acquit, is too clear for discussion. Such an instruction would be obnoxious to the provision of our statute, which denies the court the right to charge on the weight of the testimony. The court gave, everything considered, an excellent charge in which all the defensive matters were submitted. Among other things he charged the jury as follows: “If you believe from the evidence in this case that the defendant did dig the well 54 feet deep’ for the said Joe Stahl, or if you have a reasonable doubt as to whether he did dig it 54 feet deep or not, you will' acquit the defendant. If you believe that the defendant dug a well 54 feet deep, and that it filled up, or if you have a reasonable doubt thereof, you will acquit the defendant. If the employes of the defendant drilled a well for Joe Stahl 54 feet deep, the defendant would not be guilty as charged, and, if you so believe or have a reasonable doubt thereof, you will acquit the defendant. Or if you believe from the evidence beyond a reasonable doubt that the defendant made the false statement alleged in the indictment, but that the defendant had been informed by any of his employes that the said well was 54 feet deep, that the defendant believed it to be 54 feet deep at the time he made the statement, he would not be guilty and you will acquit him; or, if you have a reasonable doubt thereof, you will acquit him. Or if you believe from the evidence in this case that the statement alleged to be false was made by the defendant through mistake or under agitation, or through inadvertence, you will acquit the defendant.” The evidence is conflicting, and the jury have resolved the conflict against appellant. As presented, we think there is no error.

3. During the argument attention was called to the case of Monson v. State, 63 S. W. 647, in the belief, no doubt, that under the authority of that case the bill of exceptions considered above would be sufficient. In that case the court was considering the question as to whether or not a bill of exceptions contained in the statement of facts, to the exclusion of evidence, could be considered, and it was held, in substance, that such a bill, to the exclusion of testimony, could not be considered, but that a bill may be so reserved to testimony admitted in evidence. This case seems to follow the decision in Blackwell v. State, 33 Tex. Cr. R. 278, 26 S. W. 397, 32 S. W. 128, which refers for its support to Cooper v. State, 7 Tex. App. 194; Green v. State, 12 Tex. App. 51; McWhorter v. State, 13 Tex. App. 523; Branch v. State, 15 Tex. App. 96; Willson, Cr. Proc. § 2516. All these decisions are more or less predicated upon rule 56 governing trial courts (67 S. W. xxiv), which, in terms, provides for the reservation of bills of exception to admitted testimony, but does not in terms seem to apply to rejected testimony. It is unnecessary in this case to determine whether all the expressions contained in the opinions on this question are such as should receive our approval. Neither the case cited by counsel nor the cases to which we have above referred can aid appellant here, for the reason that in this case his bill of exceptions touching the matter was separately reserved, and not contained in the statement of facts, and must, under all the decisions, be tested solely and alone by reference to its contents. So tested, it seems clear that it shows no error.

Finding no error in the record, it is ordered that the judgment of conviction be, and the same is hereby, in all things affirmed.  