Appellant has filed a motion for rehearing, alleging that the court erred in affirming the judgment, and especially calls attention to the fact that the court was in error in making this statement in the opinion: "The stenographer was introduced as a witness to reproduce the testimony delivered on the Smith trial, and over objection he did reproduce it. The main objection is, that the written testimony was the best evidence." The motion then states that the court was in error in the above statement because appellant raised no such objection, but did object to the stenographer, McKinzie, testifying orally as to what the defendant's testimony was on the trial of Joe Smith v. State, being the trial in which the alleged perjury was committed, as shown by bill, etc. Second, because the testimony on the trial of the Smith case was reduced to shorthand writing as required by the statutory law of this State, and was the best evidence of what the defendant, Joe Smith's, testimony was on his trial. With these objections to the statement in the opinion affirming the judgment, stated in the motion for rehearing, we still believe the opinion was correct in stating that one of his objections was that the written testimony was the best evidence. The evidence reproduced by the witness was not reduced to typewritten form, or in writing, and the reasons were stated for not doing so, that Smith has appealed his case to this court without a statement of facts. If the oral testimony was not the best evidence, it must be because the written testimony would be better, and this is emphasized in this rehearing motion, because he states that the evidence of appellant given on the Smith trial was reduced to shorthand writing as required by the statutory law of this State. If this *Page 253 does not mean the writing was the best testimony, and that the oral was secondary, we do not understand the effect of the objections. However, it is unnecessary to discuss that question further, but the writer deems it necessary, as he wrote the opinion of affirmance, to make this additional statement, in regard to this testimony, towit: the stenographer was reproducing the testimony of appellant given on the trial of Smith, which formed the basis of this perjury. As a part of the State's case, it was necessary to show what appellant did testify in the Smith trial in order to show its falsity. The case cited in43 Tex. Crim. 580, is not applicable to the question here presented. That case was correct on the question decided, but it referred to the testimony of third parties; it had no reference or application to the reproduction of alleged false testimony of an accused in a perjury case. That testimony could be reproduced by anybody who heard the testimony, and it was necessary to do so in order to show its falsity. That the stenographer was called upon to reproduce it would make no difference. There could possibly be no objection to reproducing before the jury the alleged false testimony where perjury is charged, because it was necessary in order that the State might show its falsity, and it is not material as to who testifies to it or reproduces it before the jury. It must be reproduced by somebody, and anybody who heard it and could reproduce it would be a competent witness so to do. If the testimony had been written out it might have been a safer plan to have reproduced it as he wrote it, but this the stenographer did not do, and other witnesses could be and were called to reproduce it, and the stenographer having taken it down in his notes, he certainly could testify, as he did, that the testimony was correctly taken down but not transcribed.
The motion for rehearing is, therefore, overruled.
Overruled.