In his motion for rehearing appellant contends that his Bill of Exception No. 1, as set out in the original opinion, was incorrectly copied in the transcript. He attaches to the motion for rehearing a certified copy of the bill of exception, which reads as follows: "That at the time the witness, W. H. Barnett, was offered as a witness for the State of Texas, it was shown to the court and the objection duly made to said witness' testimony by defendant for the reason that said witness had been tried and convicted of a felony for three times, namely, Federal Court of Wichita County, Texas, car theft, 1920, the State Court of New Mexico in Quay County, a car theft and in the State Court of Wichita County, Texas, 2 years for stealing *Page 217 cotton in 1927, and was not a proper and duly qualified witness to testify in said cause."
The certified copy of the bill of exception, after the words "Quay County," contains the following: "a car theft and in the State Court of Wichita County, Texas." This statement does not appear in the bill of exception copied in the transcript. However, this does not affect the disposition made of the case originally as there is nothing in the bill to show that the convictions in New Mexico or in the State Court of Wichita County, Texas, were anterior to the effective date of Art. 708, C. C. P., as amended by Chap. 27, Acts of 39th Legislature, and as found in the Codification of 1925, and as amended by Chap. 13, Acts of the 39th Legislature, 1926, First Called Session. To disqualify a convict from now testifying, it must affirmatively appear that he was finally convicted of a felony prior to the effective date of the above statutes. See Spann v. State, 116 Tex.Crim. Rep.; Stanley v. State,120 Tex. Crim. 450; Fitzgerald v. State, 38 S.W.2d 329; Dade v. State, 76 S.W.2d 778.
We adhere to what we said in the original opinion to the effect that this court judicially knows that there is no such court as the "Federal Court of Wichita County, Texas," and consequently the bill of exception in question does not reflect that the witness had been convicted of a felony by a court of competent jurisdiction.
Believing the case to have been properly disposed of upon the original hearing, the motion for rehearing is overruled.
Overruled.