
    JAMES v. STATE.
    (No. 6052.)
    (Court of Criminal Appeals of Texas.
    March 9, 1921.)
    1. Criminal law <&wkey;400(3) — Showing that draft records were sent to Washington made oral testimony admissible.
    In a prosecution for murder, showing that all of the records and documents of the local exemption bogrd had been boxed up and sent to Washington, D. C., by order of the War Department, was sufficient to admit oral testimony of the clerk of the local exemption board as to the classification of defendant under the selective draft, when offered by the state.
    2. Witnesses &wkey;>345(2) — State may . ask defendant’s witnesses if they had not been indicted for perjury.
    In a prosecution for murder, it was permissible for the state to ask each of defendant’s witnesses if he had not been indicted for perjury, or was not then under such indictment; the testimony being admissible as affecting generally the credibility of the witnesses.
    3. Criminal law <&wkey;l 1701/2(6) — Cross-examination of defendant’s witnesses as to indictment for perjury in particular case prejudicial.
    In a prosecution for murder, cross-examination of defendant’s witnesses by the state, as to whether they had not been indicted for perjury in the particular case, to which they answered in the affirmative, held error prejudicial to defendant, and not cured by withdrawal of the evidence.
    4. Homicide <&wkey;l70 — Testimony'as to ownership of boots by defendant admissible.
    In a prosecution for murder, the state’s testimony showing that tracks near the scene of the killing appeared to be boot tracks, etc., it was not error to ask defendant, when a witness, relative to his ownership of a pair of boots prior to the homicide, and testimony of another witness, in which he stated that he saw defendant exchange a pair of boots with a third person some time prior to the homicide, was admissible.
    Appeal from District Court, Robertson County; John Watson, Judge.
    John James was convicted of murder, and lie appeals.
    Reversed and remanded.
    H. S. Moretead, J. L. Goodman, and Perry & Woods, all of Franklin, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Robertson county of the murder of Claude Whitehead, and his punishment fixed at twenty years in the penitentiary. This is the second appeal of this case. See 219 S. W. 202, for a discussion of the facts.

On this trial the state desifed to prove by the oral testimony of the clerk of the local exemption board the classification of appellant under the selective draft, as made by the district board of his district. It appears that he had filed an application for deferred classification, and that the district board sent the written application or claim to the local board with the notation of its action written thereon. Appellant objected to the offered testimony, upon the ground that it was not the best evidence, was secondary, and hearsay. To the bill of exceptions, taken to his action in overruling said objection, and allowing the witness to state that appellant was placed in the fourth class, the trial court attached the qualification that it was shown by other evidence that all of the records and documents of the local exemption board had been boxed up and sent to Washington, D. C., by order of the War Department. Accepting this as true, there was no error in admitting secondary evidence of the written findings of the district board. Rule 11 under article 36S7, 'chapter 4, title 53, Vernon’s Sayles’ Ann. Civ. St. 1914, provides that, when a written instrument is beyond the reach of the process of the court, secondary evidence thereof is admissible. G. C. & S. F. Ry. Co. v. Dimmett, 17 Tex. Civ. App. 255, 42 S. W. 583; St. Louis, Ry. Co. v. May, 53 Tex. Civ. App. 257, 115 S. W. 900; M., K. & T. Ry. Co. v. Gober (Civ. App.) 125 S. W. 383; Smith v. Traders’ National Bank, 82 Tex. 368. This court has held admissible secondary evidence of documents shown to be at the time of the trial in Oklahoma, and also in Washington, D. C. Roby v. State, 73 Tex. Cr. R. 9; Arensman v. State, 79 Tex. Cr. R. 546. 22 Corpus Juris, 1033-1036, states the rule to be that, if the primary evidence be inaccessible or beyond the jurisdiction of the court, secondary evidence thereof is admissible.

Appellant’s witness, Frank Welch, was asked upon cross-examination if he had not been indicted for perjury, to which he answered that he had, and was then asked, ‘In this case?” and answered, “Yes, sir.” Appellant bad filed herein a motion asking that the prosecution be forbidden to ask any questions about said alleged perjury or the indictment of the witness therefor. At the time said questions were asked, no ruling had been made on this motion. At the time of such asking, appellant again objected, and also called attention to his motion; his objection then made being that such evidence was irrelevant, incompetent, and prejudicial, and that it in effect placed before the jury the opinion of the grand jurors that said witness had falsified his testimony as given in this ease at a previous trial. Substantially the same proceedings appear in the record as relating to the witness Miller. Some time after both said witnesses had testified the trial court withdrew from the consideration of the jury that portion of their testimony which showed that they had been indicted for perjury growing out of this case. We do not think either of the motions of appellant, as made before the witnesses took the stand, should have been granted, as it was permissible to ask each of said witnesses if he had not been indicted for perjury', or was not then under such indictment; said testimony being admissible as affecting generally the credibility of said witnesses. Any - effort, however, to connect said perjury with the testimony of the witness given on this trial, or with former testimony as given on a former trial of this case, would manifestly be hurtful to accused. There is no escape from the proposition that, if the state had proved outright that 12 good and true men of Robertson county believed that the testimony of these witnesses as given at a former trial was false, it would have greatly affected appellant’s case. Such we think the necessáry effect of the testimony establishing that said witnesses had formerly testified herein and had since been indicted fof perjury, or for perjury growing out of their testimony as given in this case upon a former trial. We do not think the injury one which the court could cure by withdrawing the evidence. Bennett v. State, 47 Tex. Cr. R. 52, 81 S. W. 30.

We do not believe that it was error to ask appellant, when a witness, relative to his ownership of a pair of boots prior to the homicide; nor do we think the court should have limited the testimony of the witness Pilgreen in which he stated that he saw appellant exchange a pair of boots with one McDonald some time prior to the homicide. The state’s testimony went to show that tracks near the scene of the killing appeared to be boot trades, and evidence showing appellant's ownership and possession of -boots became, therefore, material. Believing that this ease must be reversed for the prejudicial error above discussed, we forego an extended mention of appellant’s claim of misconduct of the jury, and will only again emphasize the need for careful observance by trial courts of impressive instructions to jurors not to engage in discussion with persons who are not members of the jury, except under statutory limitations, and not to discuss while in the jury room matters not in evidence before them.

For the error mentioned, the judgment will be reversed, and the cause remanded for new trial. 
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