Appellant was convicted of perjury, and his punishment assessed at five years in the penitentiary, and prosecutes this appeal. Appellant filed a motion for a continuance on account of the absence of the following named witnesses: Dr. Rowe, Calvin Inman, and Buckley Williamson, who live in Navarro County, and A.D. and George Martin, who reside in Limestone County. The diligence shown to procure the attendance of these witnesses appears to have been sufficient. We do not consider the testimony of Dr. Rowe, as stated by the appellant, of a material character. No issue appears to have been made as to the insanity of the appellant at the time of the alleged signing of said note, and the fact that Dr. Rowe would testify that he attended the defendant in several cases of sickness, and that during said time said defendant suffered with his head, and at times was deranged from said head troubles, would, it occurs to us, be immaterial. And the allegation that he could prove by certain witnesses "that they had gathered the corn of William Trumbull, on Floyd's place, and that Floyd did not come at any time while they were there and receive a note from the defendant," is not such a showing of facts as we can consider of a material character. The witness, Floyd, does not testify that these parties were present and saw the execution and delivery of the note, and the expression, in the application for a continuance, that Floyd did not come in at any time while they were there and receive a note from the defendant, is too general. The testimony of the absent witnesses, George and A.D. Martin, is not shown by the application to have been rendered admissible. They could have only been used to impeach the witness, Floyd, in case he had testified that he had not told said witnesses, between the alleged date of the note and the suit at Kerens, that he had no note against the defendant. If said Floyd had been examined upon this point, the predicate might have been laid for his impeachment, or he might have explained the matter in such a way as to render the testimony of said witnesses absolutely immaterial. We cannot tell as to this from the showing in the application.
It was entirely competent for the court to retry the case at the same term, and even within two days after the former trial; and, if the jury for the week had been discharged, it was competent for the court to have other jurors summoned. By appellant's fourth bill of exceptions, be questions the action of the court in allowing evidence tending to show the loss of the note, and secondary evidence of its contents, on *Page 201 the ground that sufficient notice had not been given to the parties who might have had said note in possession; alleging that one J.H. Anderson was of counsel for defendant, and was the only one of defendant's attorneys who ever had possession of defendant's said papers, and that said Anderson had never been served with notice to produce said papers. The bill is very general in its character, and does not show that J.H. Anderson was the custodian of said note. If we recur to the statement of facts to help out the bill of exceptions, it appears from said statement of facts that these papers — the note and a certain mortgage — were court papers, and the proper custodian of the same was the District Clerk; that at a former term of the court, on motion of the defendant's counsel, said note was turned over to defendant's counsel, Scott Anderson, for inspection, and they were not returned to the District Clerk or to the District Attorney. The District Attorney testified that he endeavored to procure these papers from both Scott and Anderson, and that each told him that the other had the papers, and that subsequently he got them both together, and they then stated that they did not know where they were, and that they were lost. Anderson was still an attorney in the case, and we think, under the circumstances, the notice to produce authorized the proof of loss, and the introduction of the contents, of said note. Anderson, it appears, was notified by the District Attorney to produce said note, and we do not understand that the objection was made as to the method of notice. There was no error in the action of the court in refusing to allow the witness, Kimes, to be introduced to impeach the reputation of J.T. Floyd for truth and veracity in the neighborhood in which he lived. It appears from the explanation of the court to said bill that the testimony had previously closed, and the State's witnesses had been discharged and gone home. It would have been manifestly unfair to have allowed this impeaching testimony, when the State's witnesses upon this branch of the case had been discharged with the knowledge of the appellant, and had gone home. There is a bill of exceptions to the remarks of the attorney, A.B. Graham, who assisted in the prosecution of this case; but said remarks did not constitute a part of the bill, so they are not the subject of revision. Reference to them is contained in the motion in arrest of judgment, and the application for a new trial, but this is not sufficient to constitute them a part of the bill; and it does not appear that the remarks were excepted to, but the exception was to the action of the court in overruling the motion in arrest of judgment and motion for a new trial. What has been said covers all of the assignments in the record. Appellant, however, contends in his argument that the indictment was defective in not alleging the character of issue joined between the parties in the civil suit, which we do not think is well taken. The allegation that issue was joined between the parties was in accordance with the approved forms, and following this is the allegation: "Then and there it became a material question whether the said note sued upon was executed and signed by the said W.H. Garrett," etc. This would authorize proof of the character *Page 202 of issue joined, and of proof to show the materiality of the question upon which the assignment for perjury was predicated. Appellant's counsel further contend in the argument that the materiality of the question upon which the assignment of perjury was predicated must be made to appear by the proof, and that there was no evidence in this case that showed that the plea of non est factum (that is, a sworn plea denying the execution of a note), was ever filed in the civil suit, and that, consequently, all evidence showing or tending to show that defendant did not execute that note was upon an immaterial issue, and would not afford the basis for an accusation of perjury, and he raises the question for the first time in this court. Our statute on the subject of pleading in civil cases, among other things, requires that the plea to a suit on a note alleging the nonexecution thereof, must be verified by affidavit. See, Arts. 1265, 1604, Subdiv. 8, New Rev. Stat., 1895. On the trial of a civil case, where the suit is on a promissory note purporting to be signed by the defendant, unless the defendant files a plea of non est factum, denying the execution of said note, on objection he will not be permitted to offer testimony that he did not execute the same. It appears from the record in this case that this testimony (that is, that the defendant swore that he did not execute said note), was admitted before the justice of the peace without objection. It will be presumed that a proper plea was interposed as a predicate for this testimony. No objection was made in the court below to this testimony on the ground that no plea of non est factum had been filed in the justice court. Perhaps, if the objection had been interposed, the plea would have been introduced; at least, we presume that the testimony was properly admitted. This view of the case shows that said testimony delivered in the justicecourt, on which the perjury in this case was predicated, was material in the trial of that case. It is not necessary for us to go to the extent of holding as some of the cases do, that perjury can be assigned on inadmissible testimony. See, Whar. Crim. Law, Sec. 1280, and notes thereto, and Sec. 1282. The distinction seems to be taken between a void and voidable proceeding. Mr. Wharton says (Section 1272): "A suit which is actually void and null for want of jurisdiction, or other incurable defect, is not one in which perjury can be committed. Thus, it is not perjury to swear falsely in a suit that is discontinued or abated; but if the proceeding is merely voidable, even though there be such defects as require a reversal on error, false swearing in its conduct is perjury, if the false evidence could by any contingency be introduced as testimony." It is not necessary in this case for as to decide that testimony denying the execution of a note, without a plea setting tip a non est factum, would be in an absolutely void proceeding, and so not the subject of perjury. As stated before, the testimony in this case as to what was sworn before the magistrate was admitted without objection, and we will assume that said testimony was delivered upon a proper defense set tip in that court. There being no errors in the record, the judgment is affirmed.
Affirmed. *Page 203
ON MOTION FOR REHEARING.