On Motion for Rehearing.
White, P. J.In a most earnest brief and argument filed by appellant’s counsel in support of his motion for a rehearing, it is mainly insisted that this court overlooked or failed to consider his fourth bill of exceptions reserved upon the trial. Such is not the case, however. The bill was examined and discussed in the consideration of the case, though not noticed in the opinion, for the reason that it was so imperfect and defective in its presentation of the points raised that they could not properly be considered as questions necessary to be determined.
When the State offered the written testimony of the *335witnesses Reynolds and Byington, taken on the examining trial of the defendant, the defense objected “because the affidavit (of the district attorney) did not show that said witnesses were, at the time of trial nor at the time of the examining trial, non-residents of the State of Texas, or otherwise beyond the jurisdiction of said court trying said cause; and because there was no evidence of the fact that the testimony offered was the testimony taken upon the examining trial; or that the witnesses had ever signed the same or been sworn thereto,' and was only a copy; all of which objections were overruled by the court, to which ruling defendant excepts,” etc. The affidavit of the district attorney does expressly state that the witnesses “reside out of the State of Texas, and are residents of the Indian Territory; ” and it is in conformity with the provisions of the statute regulating the practice in such cases. Code Crim. Proc. art. 772.
With regard to the other objections to the written testimony of the witnesses, impeaching its identification and authenticity, counsel cites and relies for authority upon Guy v. State, 9 Texas Ct. App. 162; Dunlap v. State, 9 Texas Ct. App. 179, and Davis v. State, 9 Texas Ct. App. 363. The rules as enunciated in each of these cases upon the subject are correct, and the objections here taken would, under these rules, have been sufficient to have excluded the testimony, if these objections were in fact true. But, as presented in the bill, of exceptions, what evidence is furnished us that the objections were true? It is true the court signed the bill with the objections as set forth, but the allowance and certificate of the judge was not an admission that the objections were true and verified by the record, but simply amounted to a statement by the court that those objections were the ones presented and relied on. Defendant should have incorporated the evidence in the bill of exceptions, or so much thereof as would have verified the truth of his objections. “Bills of exception must state enough of the evidence or *336facts proved in the case to make intelligible the ruling of the court excepted to, in reference to the issues made by. the pleadings.” Rules Dist. Ct. 59; White v. State, 9 Texas Ct. App. 41; Walker v. State, 9 Texas Ct. App. 200; Wright v. State, 10 Texas Ct. App. 476.
But it may be urged that the statement of facts fails to show affirmatively that the objections are not true, and that the evidence of the witnesses taken on the examining trial as copied in the statement of facts is wanting in all the particulars pointed out by the objections. But it will be noted that all the objections go simply to matters of form in the identification and establishment of the depositions as authentic. The rule with regard to the incorporation of depositions in the statement of facts is that “the commissions, notices and interrogatories in depositions adduced in evidence shall in no case be inserted or copied into a statement of facts, but the evidence thus taken and admitted shall appear in the statement of facts in the same manner as though the witness had been on the stand in giving his evidence, and not otherwise in form or substance.” Rules Dist. Court, No. 15. This rule is equally applicable to depositions or the written testimony of witnesses taken on examining trials.
The statement of facts need not show that the prerequisites of the statute with regard to the formal authentication of such evidence have been observed and complied with. Reference, therefore, to the statement of facts cannot aid in determining whether the objections stated in the bill are true or untrue. It devolved upon defendant to show by his bill of exceptions the facts upon which he relied to establish the truth of the objections or the fact that they were well taken. Having failed to do so, his bill of exceptions amounts to nothing, and there was nothing in it upon which we could pass intelligently.
The motion for rehearing is overruled.
Motion overruled, .