On the trial the State offered in evidence the affidavit of Slaughter, the alleged owner of the stolen animal, to the effect that he had never given defendant his consent to the taking of the animal. To this affidavit was attached a written agreement, signed by the district attorney and also by the defendant, as well as by his attorneys, in which agreement it was stipulated that said affidavit should be taken as his (Slaughter’s) full and unqualified evidence on this trial; “ and that said statement is tó be taken and admitted and read in evidence as the testimony of said Slaughter, without reservation, by both parties, as all that said Slaughter knows or can testify to in the said cause; and that said statement be taken and admitted in evidence as of the same weight and merit as if the said witness, O. 0. Slaughter, were present at the trial of said cause, and making under oath as a witness the said statements that are included in said affidavit.” This agreement was witnessed by T. J. Roberson.
Two objections were interposed by defendant to the introduction of this affidavit and agreement as evidence. “1. That defendant had the right to be confronted by the witnesses against him. 2. It was not proven that defendant had ever signed the agreement that the same should be read in evidence.” These objections were overruled, and the affidavit and agreement admitted in evidence, and defendant saved a bill of exceptions to the ruling.
So far as the first objection is concerned, it was not tenable. “ The defendant to a criminal prosecution for any offense may waive any right secured to him by law except the right of trial by jury in a felony case.” (Code Crim, Proc., Art. 23.) Here the defendant in person agreed that the affidavit might be read in evidence, and he expressly waived the personal attendance of the witness. This case is not like the case of Bell v. The State, *2442 Texas Court of Appeals, 215, in which it was held that such an agreement made by the attorney for defendant was not legal or binding upon him. Such an agreement, to be binding, must be made by the defendant himself, as was done in this case.
The second objection, we think, was tantamount to s denial that defendant had signed the agreement in writing to waive the personal presence of Slaughter as a witness. This brought the execution of the writing, that is, the written agreement, in question. It is a rule of evidence, well settled, that “if the execution of an instrument is to be proved, the primary evidence is the testimony of the subscribing witness, if there be one. Until it is shown that the production of the primary evidence is out of the party’s power, no other proof of the fact is in general admitted.” (1 Greenl. Ev., 13 ed., sec. 84.)
“So resolved,” says Mr. Wharton, “are the courts in insisting on this rule, that in cases where subscribing witnesses are necessary, a party’s admission has been held insufficient to dispense with the production of the attesting witness, even though such admission be made in open court.” (1 Whart. Ev., sec. 725. See White v. Holliday, 20 Texas, 679.) These are the rules where attesting witnesses are necessary to the validity of the instrument. “Where attesting witnesses are not necessary to the validity of the instrument, it may be prima facie proved by the admissions of the party, provided such admissions are clear and specific as to the writing. * * * And such admission may be proved inferentially as well as directly.” (1 Whart. Ev., sec. 725; 2 Whart. Ev., 2 ed., sec. 1092.)
In this case it was not necessary that there should have been an attesting witness to the execution of the written agreement. Still the parties seem to have thought proper to have it witnessed, and we have been unable to find any authority which takes this particular character of instrument out of the operation of the rules above enunciated. If the witness could not be produced after diligent search, or was beyond the jurisdiction of the court, then the handwriting of said witness might have been proven. (1 Whart. Ev., sec. 726; Abbott’s Trial Ev., 391.) Or if after its execution the defendant had admitted aliunde its execution, then that admission would have proven it. If the absent attesting witness cannot be produced or accounted for, and his handwriting cannot be proven, or if no independent admission of execution by the objecting party can be proven, we can see no reason why the fact of the execution might not *245be proven by any one who saw the parties sign and execute it. In secondary evidence there are no degrees, and we see no reason why this rule would not also allow such proof as that just mentioned. (White v. Holliday, 20 Texas, 679.) But some such proof must have been made before its introduction as evidence was admissible, where the objection to its introduction called its execution in question, as in this instance, and the court erred in its admission over the objection and without the necessary proof of execution. Strippleman v. Clark, 11 Texas, 296, is not analogous.
Again: the case as established by the proofs was one wholly of circumstantial evidence. Where such is the case the rule is imperative that, whether asked or not, the court should instruct the jury as to the law controlling that character of evidence. (13 Texas Ct. App., 51; Id., 309; Id., 493; Id., 669; 14 Texas Ct. App., 96; Id., 312, and authorities cited in those cases.)
For the errors discussed, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded„
Opinion delivered May 17, 1884.