No. 2489 | Tex. App. | Nov 2, 1887
With regard to the rulings of the court in changing the venue of this cause, and upon the defendant’s plea to the jurisdiction, it is unnecessary that we should notice them further than to refer to the decision of this court in Bohannon v. The State, 14 Texas Court of Appeals, 271, where precisely the same questions arose, and after an elaborate discussion were determined adversely to the positions urged by defendant’s counsel in this case.
It was not error to permit the State’s witness Bailey to testify that he was a justice of the peace of Harris county, and as such administered to the defendant the oath upon which the false swearing is predicated. While the general rule is that the best evidence by which a fact can be proved must be produced, or its absence accounted for, before secondary or inferior evidence is admissible, a well established exception to this general rulé is that the official character of an alleged .public officer need not be proved by the commission or other written evidence of the right of such officer to act as such, except in an issue directly between the officer and the public. Such proof may be made originally by parol evidence, and is sufficient if it shows the person to be a de facto officer. This exception to the general rule is founded upon public convenience, and is as well established as is the general rule. (1 Greenl. Ev., secs. 83-92; Whart. Crim. Ev., sec. 164; 1 Whart. Ev., sec. 78; Abbott’s Tr. Ev., p. 193.)
On the cross examination of the State’s witness Jemison, the defendant asked said witness the question, “Have you not been confined in the penitentiary for crime?” Upon objection made thereto by the State, the witness was not permitted, to answer the question; to which ruling of the court the defendant excepted. Defendant’s bill of exception is very meagre. It does not disclose the purpose of the question, the objection made thereto, nor the answer expected to be elicited thereby. If it had shown that the defendant expected the question to be answered affirmatively, and that the object in eliciting such answer was to affect the credibility of the witness, we would hold that the court erred materially in refusing to permit.the question to be answered. (Lights v. The State, 21 Texas Ct. App., 308.) As the matter is presented to us, however, we can not say that the ruling of. the court was erroneous, or, if erroneous, that the error was prejudicial to the defendant.
There was no exception taken to the charge of the court, and but one special instruction was requested by the defendant, which was given. It is now, for the first time, urged that the charge is defective, in that it fails to instruct the jury in the legal signification of the words “ deliberately” and “ willfully,” used in the statutory definition of this offense. In the respect complained of the charge is deficient. (Steber v. The State, 23 Texas Ct. App., 176, and cases there cited.) But, as the defect was not excepted to at the time of the trial, and as, in view of the facts of this case, such defect could not have reasonably caused injury to the rights of the defendant, especially when such defect was practically cured by the special instruction given at the request of the defendant, we must hold that the charge of the court is substantially sufficient.
We have given attention to all errors complained of, and have found no such error in the conviction as would warrant us in setting it aside; wherefore the judgment is affirmed.
Affirmed.