In his motion for rehearing appellant renews an attack upon the indictment. He does not in the motion point out any particular claimed defects, but refers us to bill of exception No. 2 which brings forward his original criticism of the indictment contained in a motion to quash. We are cited to many cases, all of which have been examined. Upon a further inspection of the indictment we have been unable to discover any vice in it, nor do any of the cases cited by appellant appear to sustain his criticism of it.
Several bills of exception brought forward complain of the introduction in evidence of inventory, annual accounts, written applications for appointment as guardian, and orders in said cause, etc. Among other objections was one urged upon the ground that the instruments were not filed with the papers in this cause three days before the trial and notice given appellant or his attorneys. It was said in our original opinion that the bills failed to certify as a fact that the grounds of objection were true. In so far as the objection mentioned is concerned, it was overlooked that in the beginning of the bills it is certified that the instruments mentioned were not filed nor notice given. It was not necessary to file or give notice as to the orders or judgments of the probate courts. The original probate records were introduced. Their admissability is controlled by article 3720, R. C. S., and not by article 3726, R. C. S., upon which appellant seems to rely. See Clayton v. State, 67 Tex.Crim. Rep., 149 S.W. 119; Jackson v. First National Bank (Texas Crim. App.), 290 S.W. 276; Manning v. State, 46 Tex.Crim. Rep.; McDaniel et al. v. Weiss et al., 53 Texas (Sup.Ct.), 257.
As we understand the record, the inventory, accounts, application for appointment as guardian, and other documents were produced upon the trial by the clerk of the court in whose custody they were supposed to be and were identified by him as the original documents on file in the probate court. We quote from Hardin v. Blackshear, 60 Texas (Sup.Ct.), 132.
"Where the original papers in a judicial proceedings, sought to be introduced, are a part of the official records of the court where the case is being tried, or are brought into open court from the county court of the same county, in the custody of the clerk of that court, it has been held, under such circumstances, such original papers are admissible in evidence. Wallis v. Beauchamp, 15 Tex. 305; Houze v. Houze, 16 Tex. 601 *Page 87 . In this connection, see, also, Styles v. Grey, 10 Tex. 503 ." Manning v. State, 46 Tex.Crim. Rep., 81 S.W. 957.
No filing or notice as to the original documents was required. If it was necessary under the circumstances to prove the execution before they would have been admissible, — (which point we find it unnecessary to decide) — we observe that there is no certificate in the various bills of exception supporting the truth of an objection that there was no proof of their execution, it being an objection only.
It was said in the original opinion that the documents in question were not such as are required to be recorded. As to this we were in error (article 4106, R. C. S.), and that statement in the original opinion is withdrawn.
Appellant criticizes that part of our opinion which sustains the receipt in evidence of certain photostatic copies of vouchers or checks authorized by section 47, title 31, U.S. Code, 1926. Appellant's position is that the law in question by its terms refers to section 661, of title 28, of the same code, which only permits copies of documents, etc., to be admitted in evidence "equally with the originals thereof". Appellant contends that if the original documents had been present in court they would have been inadmissible as evidence because not properly proven up, and therefore the copies introduced were subject to the same infirmity. In his petition to the county court of Limestone county, Texas, for appointment as guardian for Green Tellis Smith appellant represented that Smith had regularly enlisted as a private in the United States armies and that by such enlistment and such service the War Risk Insurance Bureau of the United States Government was ready and willing to make a compensation award to him, but that he was not mentally competent to sign such documents and pay vouchers as would be necessary to collect such award. It was under this application that appellant was appointed guardian of the estate of Green Tellis Smith. The inventory and accounts filed by appellant in said guardianship show no funds or property coming into his hands other than from the United States Government under such compensation award. The photostatic copies of the vouchers or checks in question show to have been drawn against the Treasurer of the United States and payable to appellant as the legal guardian of Green Tellis Smith, and upon the face of the vouchers purport to be from the Treasurer of the War Risk Insurance Bureau. Upon the back of said vouchers appears what purports to be the signature of appellant as guardian of Green Tellis Smith.
Richard A. Toomey gave testimony to the effect that in a conversation with appellant concerning the amounts represented by the checks which had been introduced in evidence appellant acknowledged that he had received the amounts of all the checks received by him as guardian of Green Tellis Smith from the United States Veterans Bureau, "including *Page 88 these checks", having reference to the very checks or vouchers to the introduction of which objection had been made. Regardless of whether the vouchers were received in evidence prior to or subsequent to the testimony of the witness Toomey, his testimony in connection with the other facts appearing in the record unquestionably made the vouchers or copies thereof admissible.
The motion for rehearing is overruled.
Overruled.