
    BARTON v. STATE.
    (No. 5506.)
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1919.)
    1. Depositions <&wkey;36 — Affidavit eok commission.
    Affidavit required by Code Cr. Proc. 1911, art. 824, as a predicate for obtaining commission to take deposition, is to be regarded as an item of procedure going to the manner and form of taking depositions in k criminal case (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3676, and notes). .
    2. Criminal law <&wkey;322 — Depositions; preSUMPTION OP REGULARITY.
    Since it is the duty of the clerk of court to have the affidavit required by Code Cr. Proc. 1911, art. 824, preliminary to issuing commission to take deposition, the presumption obtains prima facie at least that the affidavit was present before the commission was issued.
    3. Depositions <&wkey;83(4) — Motion to suppress TOO LATE WHERE MADE AT SUBSEQUENT TERM.
    Where county attorney had notice and filed cross-interrogatories and the clerk issued commissions and the depositions were taken and filed, motion made at a subsequent term to quash depositions on the ground that affidavit required by Code Cr. Proc. 1911, art. 824, as a predicate for obtaining commission, was not shown to have been made, should not have been entertained in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3676, made applicable to criminal cases by Code Cr. Proc. 1911, art. 822; affidavits having been filed embodying the facts required by article 832, as a predicate for introduction of depositions.
    4. Criminal law i&wkey;596(l) — Continuance PCJR CUMULATIVE EVIDENCE; SUPPRESSION OP DEPOSITIONS.
    Where, after motion by county attorney to quash depositions, on the ground that Code Cr. Proc. 1911, art. 824, as to preliminary affidavit, had not been complied with, defendant presented an application for a continuance and as one of the reasons therefor stated that clerk of court who issued commission was without the state, but if present would testify^ that the affidavit was filed, held, that defendant was entitled to continuance to obtain testimony of clerk, though a witness appeared and testified as to alibi; the depositions in question being sufficient if believed to establish an alibi.
    5. Witnesses <&wkey;414(2) — Impeachment; corroboration BY SHOWING PRIOR CONSISTENT STATEMENT.
    The state could not support a witness, who had been impeached by proof that his general reputation was bad, by showing that he had made at other times statements consistent with his testimony upon the trial.
    Appeal from District Court, Somervell County; O. L. Lockett, Judge.
    C. H. Barton was convicted of burglary, and appeals.
    Reversed and remanded.
    J. K. Russell and IP. E. Johnson, both of Cleburne, for appellant.
    C. M. Cureton, Atty. Gen., and C. W. Taylor, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant is under sentence of confinement in the penitentiary for 25 years for the offense of burglary by the use of high explosives.

The indictment was returned April 16, 1918. It appears that on the 23d day of April, 1918, 'the clerk of the district court of Somervell county issued a commission directed to the proper officer in the state of Oklahoma to take the deposition of certain witnesses named therein residing at Tulsa, Okl., in answer to the direct and cross interrogatories accompanying the commission; that the depositions were taken and returned and filed with the district clerk on the 18th day of August, 1918; that subsequent thereto said court held its September term in 1918, and subsequently at the April term of 'said court of 1919 this cause was tried. When the case was called for trial, bill of exceptions shows that the county attorney presented to the court a written motion to quash the depositions; that motion had not prior thereto been filed, and no notice of it had been served upon the appellant or his counsel; that when it was read the court sustained it, and it was then filed by the clerk. Appellant’s counsel sought and obtained leave and time to file an application for continuance, claiming that they were surprised at the action of the court quashing the depositions, and on presentation of the motion for continuance it was overruled. The action of the court in quashing the deposition, as we understand the record, was based upon the fact that it was not made to appear that the appellant had, as a predicate for obtaining commission to take the depositioná, made the affidavit required by article 824 of the Code of Criminal Procedure. In connection with the application for continuance and subsequent, motion to permit the use of the depositions upon the trial, there were filed and brought to the attention of the court affidavits of several persons to the effect that an affidavit complying with the requirements of the article mentioned was filed in a timely manner, and in the affidavits mentioned there is contained a substantial reproduction of the alleged affidavit. Controverting the motion to continue, the county attorney denied that the affidavit had been made. Among the other allegations in the application for continuance was one that the clerk of the district court, who issued the commission to take the depositions, would testify if present that the affidavit was filed; the motion charging tfyat clerk at the time was in New Mexico, and time was sought within which to procure his testimony. In connection with the motion, affidavits were filed which embodied the facts required as a predicate for the introduction of depositions by article 832, Code of Criminal Procedure, if in fact that article refers to other than depositions taken at an examining trial. The depositions in question, by the testimony of several witnesses, were sufficient if believed to establish an alibi for the appellant by showing that at the time the offense was committed he was in Oklahoma. The court in his qualifications— which were not accepted as correct by the appellant — stated among other things that on the trial a witness appeared and testified' to an alibi in behalf of the appellant, and further says that he considered and believed to be true controverting statement filed by. the county attorney.

We regard the affidavit required by article 824 as an item of procedure going to the manner and form of taking depositions in a criminal ease. Vernon’s Civil Statutes, vol. 3, p. 2306, and cases referred to. See, also, Ellis v. Lewis, 45 Tex. Civ. App. 284, 100 S. W. 190; Blake v. State, 38 Tex. Cr. R. 377, 43 S. W. 107.

The law requires this affidavit to be made as a predicate for the issuance by the clerk of notice to the adverse parties, and the issuance of commissions. It affirmatively appears that the county attorney had notice and filed cross-interrogatories, and that the clerk issued commissions and thereon the depositions were taken and filed; and that no objections were filed to them until the day the case was called for trial. We find nothing in the statutes which requires the affidavit mentioned in article 824 to accompany the depositions or the commission, v and, it being the duty of the clerk to have it preliminary to issuing the commission, the presumption would obtain prima facia at least that it was "present before the commission was issued. The depositions appear to have been originally quashed upon the mere presentation of a written motion, not filed at the time it was presented upon which no proof was made by the state. ' Article 822, Code of Criminal Procedure, declares that the rules obtaining in civil cases shall control the taking of depositions when not in conflict with the requirement of the chapter in which that article was found. Article 3670 of the Civil Code provides that, where depositions have been on file for one day before the case is called, no objection to their form or manner 'of taking shall be heard unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences, “provided, however, that such objection shall be made*and determined at the first term of the court after the deposition'has been filed, and not thereafter,” It appears, therefore, that the motion in the instant case, coming at a subsequent term of the court, should not have been entertained. Blake v. State, 38 Tex. Cr. R. 377, 43 S. W. 107, from which, on the subject, we quote as follows: ■

“The statute above quoted we regard as imperative on this subject; and it can mean nothing less than that, if the depositions are filed, an ■ objection to the form and manner of taking same must be made at the first term of the court thereafter;' and, if not then made, such objection is waived, and cannot be made at a succeeding term.”

Even if the court was authorized to entertain it, we think under the showing made the appellant was entitled to have the testimony of the clerk who issued the commission,’ and that the delay necessary to obtain it should have been afforded him. The fact that the court, on the affidavits before him, was inclined to believe' that the state’s position was true and the appellant’s untrue, emphasizes the importance of obtaining tire testimony of the clerk. The fact that a witness appeared and testified to an alibi is no sufficient reason for depriving the appellant of the right to have the testimony of the several witnesses embodied in the deposition to show_ that he was in the state of Oklahoma and not in Texas when the offense was committed. . Such we understand the holding of the court in Blake v. State, 38 Tex. Cr. R. 379, 43 S. W. 107.

Theré are bills of exception relating to the formation of the jury, which, in view of the fact that they are not likely to occur upon another trial, will not be discussed.

Several bills are reserved to the introduction of evidence. The case was, one depending upon circumstantial evidence in which the latitude given in the introduction of evidence of collateral matters is quite broad. The bills prepared are meager in presenting the attending circumstances, and we are not able to discern from them that error was committed. Upon the subject of bills of exceptions, see Branch’s Annotated Texas Penal Code, § 207.

There are bills that indicate that the state was permitted to support a witness who had been impeached by proof that his general reputation was bad — by showing that he had made at other times statements consistent with his testimony upon the trial. Such statements are not admissible under the circumstances, though, as the matter is presented in the bills of exceptions and the explanation by the court, we are not able to say thht they disclose error requiring reversal.

Because of the errors pointed out in the matters discussed relating to the depositions which were suppressed and excluded, the judgment of the trial court is reversed, and the cause remanded. 
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