Appellant, in his motion for rehearing, contends that this court "incorrectly" found in the original opinion that the only objection made to the introduction of the divorce decree was that it was irrelevant and immaterial, claiming that he also objected to it because "the judgment, or copy thereof, would have to be filed with the record in this cause and notice given the defendant, which has not been done."
Appellant is correct in stating that his bill shows that this objection was made. Of course, we noticed that in reading his bill of exceptions and his brief, but in his brief he did not present that question, but urged the other objections that the judgment was immaterial and irrelevant. We took it that the reason appellant did not present that question in his brief was that upon reflection he had concluded that there was nothing in that objection. However, as he now insists upon it, we will pass thereon.
Article 784 (764), Code Criminal Procedure, says: "The rules of evidence prescribed in the statute law in this State in civil suits shall, so far as applicable, govern also in criminal actions when not in conflict with the provisions of this Code, or of the Penal Code." We know of no other statute, either in the Penal or Procedure Code, *Page 319 which, on this subject, prescribes any other or different rule. We, therefore, go to the Revised Civil Statutes to see what they prescribe on the subject.
The divorce judgment introduced in this case was in the same court that this case was tried in and the minutes of that court contained the judgment in both civil and criminal matters. The only article in the Revised Civil Statutes which regulates the subject is article 2306, which says: "Copies of the records of all public officers and courts of this State, certified to under the hand and seal (if there be one) of the lawful possessor of such records, shall be admitted in evidence in all cases where the records themselves would be admissible." The clerk of the court in which this cause was pending was introduced, sworn as a witness, and produced the minute book of the court in which this case was being tried in which the divorce decree was recorded. After being thus identified, the divorce decree was introduced in evidence. No notice of any kind whatever is required by this statute or any other statute, civil or criminal, that either a certified copy of the judgment of the court in which a case is being tried, in order to be introduced in evidence, or the judgment book itself, shall be filed and notice of three days or any other time shall be given as a prerequisite to the introduction in evidence of a judgment therein recorded. The record itself, without any notice whatever, would be admissible, and so would a certified copy thereof.
Evidently appellant overlooked this statute and doubtless had in mind article 2312 of the Revised Civil Statutes of Texas, which prescribes that: "Every instrument of writing which is permitted or required by law to be recorded in the office of the clerk of the County Court, and which has been or may be so recorded after being proven or acknowledged in the manner provided by the laws in force at the time of its registration shall be admitted as evidence without the necessity of proving its execution; provided, that the party who wishes to give it in evidence shall file the same among the papers of the suit in which he proposes to use it, at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party or his attorney of record," . . . It is perfectly evident that this statute had no reference whatever to the judgment of the court, but applies exclusively to instruments between private parties, such as deeds, bills of sale, deeds of trust and such like documents. Appellant's citation of the case of Golin v. State, 37 Tex.Crim. Rep., and Lamar v. State, 49 Texas Crim., 563, were cases treating of such instruments and not the records of judgments of a court and they have no application whatever to this case. The other case he cites, Dunagain v. State, 38 Tex.Crim. Rep., has no application whatever to this question or to the record of either the judgment of the court or a private document between parties. We have stated in the original opinion the full of what the Dunagain case is and the decision of the court thereon. *Page 320
We might collate the many decisions of the Supreme Court on this subject, all to the same effect, but instead of doing this, we merely refer to the notes under said two articles of the Revised Statutes cited above in either Batts' or Sayles' Annotated Revised Civil Statutes.
It is unnecessary to further discuss either of the other questions again presented by appellant in his motion for rehearing. We fully discussed and decided those questions against appellant in the original opinion.
The motion is overruled.
Overruled.