Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years.
J.B. Keith was permitted, over appellant's objections, to testify "that he was present at the trial of Dock Baines at the last term of this court, when Joe Gordon and Fayette Gordon were witnesses and upon the stand, and that they testified, in substance, that a paper gun wadding was picked up in the yard of J.O. Freeman the night Minnie Freeman was shot, and near the point where she was shot." Appellant excepts to this testimony because hearsay, irrelevant, and immaterial, and given in the absence of defendant, and could not bind him. The court appends the following explanation to the bill: "The court admitted this evidence to enable the court to pass upon the materiality of the alleged false statement, and submitted it in the charge." However, we find there is no limitation by the court of this testimony in the charge, and we also fail to find any bill of exceptions to the refusal of the court to so limit it, nor is there such an exception reserved in the motion for new trial. The second bill of exceptions complains that the court permitted Joe Gordon to testify that he stated on the trial of Dock Baines "that we picked up the gun wadding now shown me by the district attorney in J.O. Freeman's yard, and that it was the same one picked up by us and examined, and that the wad was picked up near where Minnie Freeman *Page 582 was shot." Appellant objects to this testimony upon the same grounds. The testimony, as shown by both bills, should not have been admitted. It is proper in a trial for perjury to prove what defendant testified on the trial wherein the perjury was committed, but it is not permissible to allow witnesses to testify to what other witnesses had testified in the case in which defendant is alleged to have committed the perjury. In other words, the court should have permitted the State to introduce the witnesses who testified in the Baines case to detail what they knew about the offense for which Baines was then on trial, so far as same may be applicable to this case. It was not proper to permit the witness Keith to testify to what Joe and Fayette Gordon testified on the Baines trial, nor was it proper to permit Joe Gordon, a witness on said trial, to testify what he stated on said trial. Either would be pure hearsay. If the witness Gordon knew enough to establish the guilt of Baines in the previous trial, he could testify to said fact; and this would be true whether he had previously testified in the Baines case or not. But the testimony that should be admitted is not what the witnesses testified on the trial of Baines, but what the witnesses who testified against Baines actually knew about Baines' guilt. This would not exclude the testimony of other witnesses who might know criminative facts against Baines. In other words, it would be proper to permit any competent witness to testify to facts tending to indicate the criminality of Baines in the trial in which appellant is alleged to have committed the perjury.
Appellant's special charges, so far as applicable, were covered in the main charge of the court. The disqualification of the district judge was passed upon by us in the case of Baines v. State, ante, p. 490. We there held that the judge was not disqualified.
For the errors discussed, the judgment is reversed, and the cause remanded.
Reversed and remanded.