
    *Josiah Osburn v. The State of Ohio.
    The record book is admissible evidence, although the records have not been' examined and subscribed by the president judge.
    A naked statement of facts, in a bill of exceptions, it not being shown wherein their occurrence at the trial prejudiced the complaining party, lays no-ground for reversing a judgment.
    Where, in a prosecution for perjury, a written paper is referred to, the place- and time of subscribing it by the accused being involved in the alleged perjury, as set forth in the indictment, such paper is proper evidence at. the trial.
    It is not error, where the record book has been read to the jury, if the court, refuse to make an order to send it with them to their room of deliberation.
    Upon a writ of error nothing is examinable but what is set forth in the transcript of the record.
    This cause was adjourned from the county of Clermont; It was a writ of error brought to reverse a judgment in a prosecution for perjury, in which the plaintiff in error was convicted and sent to the penitentiary;
    The case was presented to the court upon four bills of exeeptions, taken in the progress of the trial before the common pleas. The indictment set forth that, at a previous term, Osburn bad been examined as a witness, between the state and one W. Aekles, tried also upon an indictment for perjury ; that upon that trial it became a material inquiry whether Osburn was ata certain wedding, which took place at the house of one T. N. Williams, on February 11,1830, and whether said Osburn, at the wedding aforesaid, in the house of T. N. Williams, signed a certain subscription paper, by which he agreed to send one scholar and a half to a school which one Harvey A. Bigam then and'there agreed to teach, and whether the said Wm. Aekles saw the said J. Osburn sign said paper, and whether said J. Osburn signed said paper at a certain shooting-match on the premises of T. N. Williamsi The indictment proceeds to state that Osburn was examined as a witness to these points; that he testified that he was not at the wedding, that he did not sign the subscription paper at the wedding; that William Aekles was within two or three feet of him when he signed the paper, and that it was signe'd at the shooting-match; all which testimony the indictment alleged, with the proper averments, to be false.
    The first bill of exceptions sets forth that, at the trial, the prosecutor, to prove the proceedings against William Aekles, produced the book of records of the common pleas, which the counsel for Os-burn objected to, as inadmissible at all; but as specially inadmissible, because the recorded cases were not subscribed by the presiding judge. Upon this exception the presiding judge signed the records, and the book was admitted.
    The second bill of exceptions recited, that the prosecution offered in evidence, duly certified transcripts of two proceedings before a justice of the peace, in which Harvey A. Bigam was plaintiff, and Osburn defendant, the object of which suits was to recover money as due upon an account. In the first *suit, Bigam was non-suited, and'in the second, recovered a judgment. These transcripts were objected to, but admitted. ,
    The third bill of exceptions stated that, in the course of the trials, one Dennis Smith was called as a witness, by the prosecution, who testified that he was present at the trial of Aekles; that' Osburn was a witness on that trial; that the oath was administered by the clerk, and was taken by Osburn with an uplifted hand. This was objected to by Osburn’s counsel, because the form of the oath was not set forth in the indictment. The objection was overruled. The subscription paper for Bigam’s school was then offered in evidence by the prosecution, which was objected to by Osburn’s counsel, but received by the court.
    The fourth bill of exceptions states that, as the jury were about to retire to consider of their verdict, Osburn’s counsel moved the court for an order that the jury take with them the record book that had been used in evidence. The court refused to make such order, but instructed the jury that they could examine the record book in court, and come into court for that purpose.
    To all these opinions of the court the counsel for Osburn excepted. But no one of their bills of exceptions points out, or specifies any particular matter wherein the points decided prejudiced the accused, Osburn, on his trial.
    The jury found a verdict of guilty. A motion was made for a new trial and overruled, and Osburn sentenced to the penitentiary.
    The errors assigned for the allowance of a writ of error are :
    1. The court erred, as appears by the bills of exceptions filed, and made a part of the record.
    2. The court erred, in refusing to sign the last bill of exceptions ¡tendered, and which was signed by the president, who afterward ■erased his name without presenting it to the associate judges; and ¡in refusing to grant a new trial, as stated in defendant’s bill.
    3. The court erred, in ordering Osburn into custody during the ■¡trial, for not finding bail, without hav-ing fixed any sum in which bail should be given.
    T. Morris and Warren, for plaintiff in error.
    Jollieee, for the state.
   .Judge Wood

delivered the opinion of the court:

The original records of a court are always evidence, where a copy of them duly certified would be evidence. The exemplification, under the seal of the court, is only made evidence, because the originals must be kept at a particular place, for the use and benefit ■of the public, to whom they belong.

It was of no importance, whether the record of the prosecution .against Ackles was signed by the president judge or not. That signature adds no validity to the record. It is required to be made, that the court shall be compelled, to see that the clerk keeps up the records with the business transacted, as nearly as is practicable. The record made out by the clerk would be evidence, though not signed by the judge. An exemplification of it might properly be made, and sent abroad for use, before such signature. Affixing the signature in court was not necessary, but did not vitiate. There was no error in admitting the record book in evidence.

The second bill of exceptions states very imperfectly the facts complained of, in the admission of the justice’s certified transcripts. We do not perceive the pertinency or relevancy of these transcripts to the issue before the court. Neither do we see wherein they tended to prejudice the accused. The admission of immaterial evidence, unless it is shown that some wrong was or most probably would be affected by it, is no ground for reversing a judgment. 4 Ohio, 81, 388.

The bill of .exceptions points to no injury sustained by the accused, in consequence of such admission. A naked statement of the fact does not warrant this court in making it a ground of . error.

The first position of the third bill of exceptions is erroneous in point of fact. The indictment sets forth the form of the oath in these terms: “The said Josiah Osburn was then and there duly sworn as a witness, as aforesaid, before the said honorable (naming the judges), that the evidence which he should give to the court and jury between the said State of Ohio and the said Wm. Acides, the defendant, on the issue then depending, should be the truth, the whole truth, and nothing but the truth.” We can see no color of exception to admitting the testimony of Smith.

The second branch of the third exception goes to the *admission of the subscription paper for Bigam’s school. Between this paper and the alleged perjury there was a direct connection ; that perjury, as charged in the indictment, related to the place and the time, and the persons present, where and when the accused subscribed it. It was expressly alleged that the accused testified concerning it, and that as to particular facts he testified falsely. The fact that such a paper was signed at all was involved in the issue. Its existence and production was the best evidence of that fact. It was, in our opinion, properly received.

The fourth bill of exceptions seems to us of a captious character. The possession of the record book, by the jury, could be of no importance to the accused. If difference of opinion arose, as to its contents, it was open in the court to be examined. Immediate access could be had to it. No prejudice to the accused could occur from its remaining in court. There is its place, appointed by law, and we are not clear that a party litigant has any right to demand that it be placed elsewhere for his benefit or for his caprice. We can not consider it error that, in this case, the court refused to make an order for delivering it to the jury.

The first assignment of errors contains no ground for reversing the judgment.

We find nothing in the record to sustain the second assignment of error asta matter of fact. No notice is taken of any refusal to sign a bill of exceptions, or of any judge erasing his name after having signed it. The record only is before us, on this writ of error, and we can examine no allegation, in respect to facts, not embodied in it. The same difficulty occurs in respect to the refusal to grant a new trial on the admission of the prosecuting attorney. We find no such admission in the record. We can not say what would be the effect of it if found in proper form. It is possible there might be no error in refusing to grant a new trial, in a criminal case, even upon the admissions of the prosecuting attorney. This court could only determine that by having embodied in the record, by way of bill of exceptions, the entire evidence given to the jury.

The third assignment of error is in the same predicament with the second. The facts alleged are not before us.

Judgment affirmed.  