Appellant was indicted on the sixteenth day ■of November, 1876, by the grand jury of Maverick County, for murder committed by him upon one Michael Schultz, in said Maverick County, on the seventh day of October, 1876. On the third day of May, 1879, he was brought to trial in the District Court of Kinney County, and the trial resulted in his conviction of murder in the second degree, with his punishment assessed at confinement in the State penitentiary for a term of ten years.
When defendant was arraigned and called upon to plead to the indictment, he stood mute, and the court, over his objections, caused a plea of not guilty to be entered for him. Defendant also filed a sworn plea to the jurisdiction of the court. His refusal to plead was based upon the ground that the District Court of Kinney County had no jurisdiction to try the cause, there being of record no transcript showing any order of court changing the venue from Maverick to Kinney County. This was also the substance of his special plea to the jurisdiction.
Two of defendant’s bills of exception, found in the transcript before us, further disclose the questions which were raised and the proceedings had with regard to the matters of venue and jurisdiction. The first is as follows, viz.: “Be it remembered, that on the trial of this cause, and after the prosecution had closed, defendant’s plea to the jurisdiction being called to the attention of the court, and charges asked upon the subject of the proving the venue to have been in Maverick County, and the silence of the record as to any transfer of the cause to this court, the ■court permitted the district attorney to call J. L. Martin, the clerk of the court, to the stand, and interrogated him as to there having been a transcript from the District Court ■of Maverick County in this cause on file in his office; to which the defendant’s counsel objected, for the reason that it was not the best evidence, was hearsay, and that this ■could not be made the record in this case. He, the said *443Martin, testified that he had seen the transcript among the papers of the cause, and knew it was filed, but knew neither what were its contents nor what the certificate was to it. No further evidence on the subject being introduced, the court refused to rule on the plea to the jurisdiction, or to submit the same to the jury in accordance with the charge asked by defendant; to each and every one of which said rulings and failure to act, defendant’s counsel objected, and tenders this bill of exceptions,” etc.
The other bill of exceptions referred to is in these words : “The district attorney proposed to prove by his honor, Judge T. M. Paschal, that the order had been made changing the venue, and proposed for his honor to be sworn. Defendant here interposed his objection. His honor then stated he did not think it was necessary for him to be sworn; it was a fact which he judicially knew. To which the defendant objected, for the reason that the unsworn testimony of the judge, and his statements from the bench, went to disprove defendant’s plea to the jurisdiction, and became evidence in the cause. To all of which defendant, by counsel, excepted,” etc. In explanation, before signing this bill, the judge adds that he “ stated that he judicially knew that, as judge, he had made the order changing the venue.”
We are of opinion that the court erred in its rulings. In the present attitude of the record, there being nothing to discover the fact, we cannot determine whether the motion to change the venue, if any such was made, was at the instance of the State or at that of defendant. This, however, is immaterial, since the third section of the “ act to provide for the change of venue by the State in criminal cases” expressly provides that, “in all cases where the venue shall be changed under the provisions of this act, the same orders shall be made, and the same proceedings had, and the same duties be performed on the part of the clerks and sheriffs as are required by the Code of Criminal Pro*444cedure in cases where a change of venue is made on the application of the accused.” Gen. Laws 15th Leg. 274. Turning to the Code of Criminal Procedure, we find that it provides that, “ when an order for a change of venue has been made, the clerk of the court where the prosecution is pending shall make out a true transcript of all the orders made in the cause, and shall transmit the same to the proper county, and shall send the original papers also with the transcript.” Pasc. Dig., art. 3000.
An order granting a change of venue, like all other orders and judgments in a case, is entered of record in the minutes of the court where the action is pending at the time. Proof of the order or judgment is the original, or a copy. Our statute provides that “ 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 possessors of such records, shall be admitted in evidence in all cases where the records themselves would be admissible.” Pasc. Dig., art. 3715. This is the best evidence, and until it is shown that such evidence cannot be had, secondary evidence or paroi evidence cannot be resorted to. 1 Greenl. on Ev., sect. 504.
Had paroi evidence been admissible to prove that the venue had been regularly and properly changed, it would still have been error for the judge to have testified to the fact without being sworn as a witness. “ The judge of the court trying an offence is a competent witness for either the State or defendant, and may be sworn upon the trial. But in such case it is in his discretion to order the trial to be postponed, and to take place before some other judge.” Pasc. Dig., art. 3115.
“ When it is proposed to offer the testimony of a judge in a cause pending before him, he is not required to testify if- he declares that there is no fact within his knowledge important in the cause.” Pasc. Dig., art. 3116. “When the judge of a court is offered as a witness, the oath may be *445administered to Mm by the clerk.” Pasc. Dig., art. 3117.
We do not propose to discuss the errors complained of in the motions for a new trial and in arrest of judgment, because these motions appear to have been made and filed more than two days after return of verdict, and no cause was assigned for the delay. Pasc. Dig., arts. 3136, 3141, 3142.
For the errors which we have noticed above, the judgment will be reversed, and the cause remanded for a new trial.
Reversed and remanded.