Defendant was indicted in Red River county for the theft of a mare, and by change of venue the case was *390transferred to Lamar county, where, upon trial, he was convicted.
Before the venue of the case was changed defendant made a motion to quash the indictment, because it did not appear from the record that the same had been presented in court as required by law. We find in the record this entry:
“ In the District Court of Bed Biver county, Saturday, June 13, 1874. Bow comes the grand jury, and, by their foreman, returned into court the following true bills of indictment, to wit: 1567. The State v. G. B. Tyson. Theft of mare.” Upon motion of the district attorney this entry was amended by order of the court so as to show that the presentment was made in “open” court, and the motion to quash the indictment was then overruled. It was not error to permit the record to be thus amended. (Townsend v. The State, 5 Texas Ct. App., 574.) As amended, the entry was all that the law requires. (Code Crim. Proc., Art. 415; Anderson v. The State, 2 Texas, Ct. App., 288; Houillion v. The State, 3 Texas Ct. App., 537; Bohannon v. The State, ante, 371.) There was no error in overruling the motion to quash the indictment, nor in overruling the motion in arrest of judgment based upon the same ground.
On the trial, the district attorney, over the objections of the defendant, was permitted to read in evidence the transcript of the proceedings in the case prior to and including the change of venue, certified from the records of the District Court of Bed Biver county. In the bill of exceptions taken to the introduction of this evidence it is stated that defendant objected to the transcript because it was not relevant or pertinent evidence, and was calculated to prejudice the minds of the jury against the defendant. In a note appended by the judge to the bill of exceptions, it is stated that the only objection made to the transcript by defendant was “that it did not show that the indictment had been properly and legally returned into the District Court of Bed Biver county, a quorum of the grand jury being present.” Plere we have a contradiction in the bill of exceptions, which should not have occurred. When a bill of exceptions, in the opinion of the judge, does not recite the facts truly, he should refuse to sign it. He should not sign a false statement, and, by way of explanation, contradict what has before been stated. A contradiction of a statement is not an explanation of it. By the manner in which the question of the admissibility of this evidence is presented, it is left for this court to determine the grounds of de*391fendant’s objection to it, and we shall do so by giving the defendant the full benefit of his bill of exceptions, the same as if the judge had not contradicted the matters therein recited, because, while the defendant’s objection to the evidence, as stated by the judge, was not a good objection, still, if the evidence was for any purpose inadmissible, and calculated to injuriously affect the defendant in the trial of the case, he should not be deprived of his objections to it merely because the trial judge, in signing his bill of exceptions, differed with him as to the grounds of his objections.
We find from the statement of facts that the entire transcript of proceedings from the District Court of Red River county, constituting twenty-four pages of the record before us, and embracing recognizances of the defendant and of witnesses, the proceedings of one mistrial of the case, and of one trial and conviction, and new trial granted, and the motion and affidavits and order for change of venue, besides other matters, was read in evidence by the district attorney to the jury.
This evidence, we think, was clearly irrelevant, and inadmissible for any purpose. It did not prove or tend to prove any issue in the case (Obert v. Landa, 45 Texas, 539), and its only effect could be to prejudice the minds of the jury against the defendant. Whether it had this effect or not, it is unnecessary for us to inquire. It being incompetent evidence, and having been admitted over defendant’s objections, it will be presumed to have prejudiced him. A defendant in a felony case is entitled to the verdict of a jury upon competent testimony alone. (Draper v. The State, 22 Texas, 400; Preston v. The State, 4 Texas Ct. App., 186; McKnight v. The State, 6 Texas Ct. App., 158; Somerville v. The State, Id., 433.)
Other errors complained of by defendant we will not discuss, as they are not deemed by us to be errors. We will remark, however, in regard to the evidence in the case, that it does not appear to us as full and satisfactory as it might be. It is to be inferred from the evidence that the defendant sold or traded the alleged stolen animal to one Dolan, and that she was afterwards found in the possession of one Guinn. Reither Dolan nor Guinn testified in the case, nor is their absence as witnesses accounted for. Dolan could certainly establish, beyond doubt, the fact, if it existed, that defendant sold or traded the animal to him. It does not appear how Guinn came into possession of the animal. We might infer that he bought her from Dolan, but inference is *392not fact, and the evidence of Guinn should have been had on the trial, if it was obtainable.
Because of the error of the court in admitting the transcript of the proceedings from the District Court of Red River county in evidence, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered June 9, 1883.