Article 660, Code Criminal Procedure, provides as the very first step in a criminal "trial after the organization and impaneling of the jury, that the indictment shall be read to the jury. This requirement is one of the provisions of said article which has been held to be mandatory. (Wilkins v. The State, 15 Texas Ct. App., 420.) But, whilst it is required that the indictment shall be read, there is no express provision of law that the fact that it was read should be noted and recited in the judgment, as is the case with regard to the plea of defendant, which is required to be so recited. (Code Crim. Proc., art. 791.) It would unquestionably be the better and more appropriate practice that this fact should be made to appear in the judgment just preceding the defendant’s plea, which is an answer to the indictment. And the uniform practice is thus to recite it in the judgment, and this is also in conformity with article 516, Code Crim. Proc., which provides that “ the indictment shall be read and defendant asked whether he is guilty or not, as therein charged.” But, whether in the judgment or elsewhere, if the fact is made to affirmatively appear in the record that the indictment was read before the plea was entered, that will be sufficient. In this case the fact that the indictment was read to the jury, and that defendant entered his plea of not guilty thereto, is positively stated in the first paragraph of the *62charge of the court to the jury. This, we think, shows a sufficient compliance with the statutory requirement.
At an examining trial held by a justice just after the arrest of defendant and others charged with the crime, and shortly after the date of its alleged commission, the two State’s witnesses Walker and wife appeared and testified, and their testimony was reduced to writing as part of said examining trial. On this trial each of said witnesses, in stating the date of the facts about which they testified, stated the dates differently from the date as deposed by them at the examining trial. Over objections of defendant, and at the instance of the prosecuting attorney, they were permitted to read their testimony taken at said examining trial, for the purpose of refreshing their memories, and after doing so they stated that the dates as stated at the examining trial were correct,— that the facts were at that time recent and fresh in their minds. It is clear from the explanation of the bill of exception, as given by the trial judge, that the witnesses, after refreshing their memories as aforesaid, then from their memory testified to the facts. (Hubby v. The State, 8 Texas Ct. App., 597.)
“ A witness who makes, or is concerned in making, written notes of an event near the time of its occurrence, is permitted to -refer, when under examination, to such notes in order to refresh his memory7.” (1 Whart. Evid. (2d ed.), § 516.) Even “conversations with third persons may become admissible when introduced for the purpose of identifying facts or dates. But such conversations are not evidence of the truth of facts which they state. They are evidence only on the single point of fixing particular dates, places or other extrinsic incidents of the facts testified to by the witness.” (Whart. Crim. Evid. (8th ed.), § 261 a.) Where a witness may assist his memory from a writing, “it does not seem necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided after inspecting it he can speak to the facts from his own recollection.” (1 Greenl. Evid. (13th ed.), §§ 436, 437.) It was not error to permit the witnesses to refresh their memories from, the testimony given by them at the examining trial, as shown in the bill of exceptions.
Defendant proposed to prove by his witness Bowland that, after the cattle were taken from defendant’s pasture, and driven by defendant and Dicus and put into Bowland’s pasture, Dicus claimed to own the cattle, and also stated that defendant was employed by him as a hired hand to assist in driving said cattle. Defendant also proposed to prove by said witness that he, defendant, told witness that the cattle belonged to Dicus, and that he, defendant, was only *63a hired hand. This testimony was refused admission by the court on objection by the prosecution — the court holding that, in so far as the declarations or statements of Dicus were concerned, it was hearsay, and in so far as those of defendant were concerned, they were not res gestee, were not made when the property was taken, nor when first found or seen in defendant’s possession, nor when his ownership was first called in question. This ruling of the court was correct. Such declarations are classed by the writers on evidence as “ self-serving,” and are in law inadmissible as evidence. (Whart. Crim. Evid. (8th ed.), § 690 et seq.; Harmon v. The State, 3 Texas Ct. App., 51; Sager v. The State, 11 Texas Ct. App., 110.)
We find two errors of omission in the charge of the court.
One theory of the defense was that the accused, in all his connection with the stolen property, acted only as an employee or hired hand of Dicus, and more than one of his witnesses testified to facts sustaining this defense. Whether this evidence was true or false was not for the court to decide, nor could the court ignore it property in the charge to the jury. “A defendant is entitled to a distinct and affirmative, and not merely an implied or negative, presentation of the issues which arise upon his evidence, in order to prevent the jury from ignoring his defenses, and to conduct them to a proper verdict if they find his evidence to be true. However improbable his evidence may seem, it is his right to have the jury determine its truth or falsity in the first instance, without being forestalled by the court.” (Reynolds v. The State, 8 Texas Ct. App., 412; Greta v. The State, 9 Texas Ct. App., 429; Jackson v. The State, 15 Texas Ct. App., 84; Kenneda v. The State, 16 Texas Ct. App., 258.)
As made by the evidence, the case against this defendant, that is, his complicity with the taking of the stolen animal, is one wholly of circumstantial character. Ho witness testifies to having seen him take the animal. ITis first connection with it, as disclosed, was in his pasture after it had been taken from its accustomed range by some one. That he is the party who took it is a fact derivable alone from other circumstances. It was plainly the duty of the court, under the facts of the case, to have charged the jury with regard to circumstantial evidence. This rule is so well settled that we deem it unnecessary to cite authorities; they may be found in almost every volume of the reports since Hunt’s case in 7 Texas Court of Appeals, 212.
For errors in the charge of the court the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered April 22, 1885.]