The defendant was indicted for the offense of perjury, it being alleged that he wilfully and knowingly swore falsely in a suit brought by C. L. Taylor against Carrie Belle Taylor, *300then and there pending and being tried in the superior court of Screven County. The alleged false testimony was set out, and its materiality was alleged. Upon the trial the State, without objection, offered in evidence the stenographic transcript of the evidence which gave the name and style of the case and the court in which it was pending, together with the names of counsel for both parties. The stenographer who reported the case was allowed, without objection, to testify as to the nature of the case, the issues involved, that the oath was administered by counsel for the party in whose favor the defendant was testifying, what the defendant testified, and that the testimony so given was material to the issues involved. It does not appear that the pleadings in the case in which it was alleged the perjured testimony was given were introduced in evidence. The defendant in his statement admitted giving the testimony, and stated that the same was true. The jury found him guilty, and he excepted to the overruling of his motion for new trial.
One of the reasons assigned in the motion why a new trial should be granted is that no competent evidence was introduced showing the existence of the judicial proceeding in the superior court of Screven County, alleged in the indictment to have been the case of C. L. Taylor against Carrie Belle Taylor, wherein, as the indictment alleged, the false testimony was given by the defendant. The original pleadings, or duly authenticated copies thereof, were not produced and introduced in evidence. However, it appears from the above statement of facts that the court stenographer was allowed to testify, without objection, as to the existence of such a proceeding. The position is taken that a duly authenticated transcript of the record of the ease is necessary to prove the judicial proceeding in the course of which the alleged perjury was committed, it being contended in this connection that the testimony of the stenographer was hearsay and without probative value. We concur in the view that where objection is made, a duly-authenticated transcript of the record is necessary to prove the existence of a judicial proceeding in a court of record. However, no objection was made by the defendant to the testimony, which, amounts to his consent to its admissibility and a waiver of any objection that might have been urged. In such case, upon a motion for new trial, the evidence must be considered without *301reference to any inherent defect which might have rendered it inadmissible had proper objection been presented. Massee v. Parrott, 29 Ga. App. 109 (114 S. E. 225). We do not concur in the view of counsel for plaintiff in error that the testimony of the stenographer was hearsay. It may have been objectionable in that the State had not established by competent proof the existence of such judicial proceeding (Code, § 38-601), and that in so far as such evidence tended to establish its existence it was inadmissible, for the reason that there was higher and better evidence of such fact; but it was not objectionable as hearsay. It is true that such evidence was secondary, but the Code provides for the introduction of such evidence in certain circumstances (§§ 38-204, 38-212, 38-213, 38-607), which illustrate that such evidence is not without probative value. It is true that the circumstances which permit the introduction of such evidence do not appear to have been present in this case. However, as pointed out above, the defendant waived his right to require better proof, and the evidence is to be considered as if those circumstances were present. The case of Heflin v. State, 88 Ga. 151 (14 S. E. 112, 30 Am. St. R. 147), is cited by counsel for the plaintiff in error. The court pointed out in its opinion in that case that “No record of the case-here referred to was put in evidence, Nor was the existence or contents of any indictment against Eddleman, or of any plea to such indictment, proved in any manner whatsoever.” (Italics ours.) This statement is not true of the present case.
It is further contended that the evidence fails to show that a lawful oath was administered to the defendant in the alleged judicial proceeding. The transcript of the evidence, introduced in evidence without objection, shows that Mr. Brant was counsel for plaintiff in the judicial proceeding wherein the indictment alleged the offense of perjury was committed. The stenographer testified: ' ‘As to who administered the oath, he was Mr. Brant’s witness, and Mr. Brant administered the oath. That is the usual form of administering oaths, and has been ever since I have known anything about it.” In Cain v. State, 10 Ga. App. 473 (3) (73 S. E. 623), it was said: “When, in the course of a judicial investigation, an attorney at law, by the authority or permission of the court, administers the oath to a witness, he does so in behalf of the court. Consequently it may properly be alleged in an indictment assign*302ing perjury upon the testimony of such witness, delivered in the court of inquiry, that the oath was administered by the presiding magistrate.” We think the evidence quoted above amply supports a finding that a lawful oath was administered to the defendant in the judicial proceeding under consideration. When a witness is called by counsel in the trial of a case and the oath administered to him in the usual manner, without a showing to the contrary, it will be presumed that the witness was given notice of the case in which he was being sworn and about which he was expected to testify. The evidence amply supported the verdict; and upon a consideration of the grounds of the motion for new trial, no error of law appears. The judge did not err in overruling the motion for new trial.
Judgment affirmed.
Broyles, C. J., concurs. MacIntyre, J., dissents.