
    DALY v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1.Criminal Law (§ 1092) — Bill of Exceptions — Acceptance.
    Bills of exceptions which were accepted with an indorsement of the trial court’s refusal to approve them, without any attempt to prove up the bills, cannot he considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    2. Witnesses (§ 255) — Evidence—Refreshing Recollection.
    A witness who made a customary memorandum from a tab sheet of the time that the burglary was called to his attention as an officer could refer to such memorandum to refresh his recollection as to the date of the burglary.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. § 255.*]
    3. Criminal Law' (§ 1169) — Appeal—Harmless Error — Admission oe Evidence.
    The admission of evidence in a burglary case that the report of the burglary was kept in the city detective’s office, and made by the witness, and showed that the burglary was committed on a certain date, was not prejudicial to accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    4. Criminal Law (§ 1090) — Bill oe Exceptions — Statement op Facts — Necessity.
    In the absence of bill of exceptions or statement of facts showing that a certain witness testified,, and what her evidence was, the Court of Criminal Appeals cannot determine whether there was any prejudicial error in the examination of such witness or the admission of her evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 1090) — Appeal—Statement op Facts.
    In the absence of a showing by the statement of facts or bill of exceptions that a certain person testified as a witness, alleged error in refusing to take a recess, in order to produce the court records showing a former conviction of such person for felony, cannot be reviewed by the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2808-2822,-2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    6. Witnesses (§ 78) — Competency—Show-ins.
    In order to make a witness incompetent on the ground that she had been convicted of a felony, and not pardoned, such facts should have been shown by the court records; but it could be shown by other evidence than such records, if it was merely sought to be shown for impeachment purposes.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-206; Dec. Dig. § 78.]
    Appeal from Criminal District Court, Dallas County; J. C. Muse, Jr., Special Judge.
    Ernest Daly was convicted of burglary, and 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
    
   DAVIDSON, J.

Appellant was convicted of breaMng into a private residence at mght; Ms punishment being assessed at five years’ confinement in the penitentiary.

The residence was alleged to he the property of Daisy Williams. Bills Nos. 1 and 5 to 10, inclusive, cannot be considered, because they were refused by the court. There was no attempt in any way to prove up the bills, but they were accepted with the in-dorsement of the trial court’s refusal to approve them; therefore they pass out of the case.

Bill No. 2 recites that, while the witness (Sunning was testifying he stated that the report of this burglary was kept in the city detective’s office, and was made by himself, and showed this burglary to have been committed on November 21, 1911. The bill further states that, upon cross-examination of this witness by the defendant, witness testified that he was testifying from a record which was made by the witness, from a tab sheet on which the first notation of these reports were noted and transferred every day to the record. At this juncture appellant objected to the testimony of this witness as to the date that this burglary was reported to the detective’s office, because the witness testified that he refreshed his memory, and was testifying, from a record made by the witness from a tab sheet, which record was not the original, hence not the best evidence. We are of opinion there is nothing in this matter. If the witness made a memorandum of the date of the burglary, or at least the time that it was called to his attention as an officer, as stated in the bill, he certainly could refer to this record as a means of refreshing his memory, if his mind was in any confusion about the dates. It would make no difference, so far as the objection here is concerned, that the record itself was not original, and the manner of testifying by the witness was not the best evidence. It was not used as evidence. It was only used, as we understand this bill, to refresh the memory of the witness as to when this matter came to his knowledge, the report of it. He made this record, as was customary to do under the circumstances, and referred to it only for the purpose of refreshing his memory. We think this testimony could not have been injurious to appellant, and under the bill was admissible.

Another bill recites that, while the witness Mittie Green was on the stand, defendant asked her the following questions: “Q. Did you ever live in Bonham, Texas? A. Yes. Q. Were you ever convicted of a felony?- A. Yes. Q. Have you ever been pardoned? A. No.” Whereupon the defendant moved the court that the testimony of this witness be excluded from the jury on the ground that she was incompetent to testify. Then the county attorney asked for an adjournment of court until pardon could be secured for the witness. The court did adjourn at that hour, which was 11:45 in the morning, until 1:30 in the evening. The bill recites that defendant understood at the time of adjournment that this witness was convicted of a felony and sentenced from Bonham, in Fannin county. The court was called at 1:30 o’clock, and the judge ruled that the testimony of the witness would not be excluded; whereupon the defendant requested that the witness be brought into court to complete her cross-examination. It developed that the witness was not present; whereupon the court, over appellant’s objection, allowed another witness to be placed on the stand and give her testimony, to which ruling of the court with reference to the witness Mittie Green, and in allowing the witness Harriott Watt to testify before the completion of the cross-examination of the witness Mittie Green, the defendant excepted. The bill further recites that the action of the court overruling the defendant’s objection to the admission of Mittie Green’s testimony was highly prejudicial, because the same resulted in her being later cross-examined in the presence of the jury as to all matters of which she had testified, which was calculated to, and did, so imbed her testimony in the minds of the jury that the same influenced them, to the hurt of this defendant, in arriving at their verdict; and the conduct of the court in causing to he placed upon the stand and examined the witness Harriott Watt between the cross-examination of the witness Mittie Green served to keep the defendant from properly cross-examining the witness Mittie Green, and to keep her testimony before the jury a much longer time than would have been the case had the witness Harriott Watt not been permitted to testify. If the witness Mittie Green at 1:30, when court was called, did not testify, the defendant could not complain that she did not testify. If she was an unpardoned convict, her testimony would not be admissible. This bill does not show what her testimony was, and only indirectly that she testified at all. As the bill is presented, the matter is so indefinite that we are unable to tell anything about it. The statement of facts fails to show that Mittie Green testified, and, except from the indirect averments of this bill, that she did testify, and was kept before the jury a longer time than she would otherwise have been but for the intervention of the witness Watt, we would not know that she was even a witness in the case, and the only evidence that shows to have been elicited from her has been already quoted, to wit: That she had lived in Bonham, had been convicted of a felony, and unpardoned. If she testified in the case, it may have been very beneficial to the defendant; but we are unable, in view of the statements of the bills of exception, to revise the matter, and as presented it shows no error. Her evidence, if she testified, is not in the record either by bill or in statement of facts.

Another bill shows that counsel moved the court to take a short recess, in order that the records of the district clerk showing former conviction of Mittie Green of a felony could be produced. This the court declined to do, stating that the process of the court I was available to secure the testimony. This fact was within the knowledge of counsel, and could have been produced. Without some showing with reference to this witness, if she testified in the case, not bringing the matter in review, this court could not decide the question.

As these bills are presented, no error is shown. If Mittie Oreen was an unpardon-ed felony convict, and testified in the case, this was error. She had no right to testify, because the statute renders her incompetent If it was sought to show her incompetency, it should have been done by the record. This was not done. If only to impeach her, she could have been made to testify to her conviction without producing the record. Except inferentially and indirectly, these bills fail to show that she did in fact testify, and the bills do not show that she testified to any fact for or against the defendant.

The judgment will be affirmed.  