On Motion for Rehearing.

In a most earnest brief and argument filed by appellant’s counsel in support of his motion for a rehearing, it is mainly insisted that this court overlooked or failed to consider his fourth bill of exceptions reserved upon the trial. Such is not the case, however. The bill was examined and discussed in the consideration of the case, though not noticed in the opinion, for the reason that it was so imperfect and defective in its presentation of the points raised that they could not properly be considered as questions necessary to be determined.

When the State offered the written testimony of the *335witnesses Reynolds and Byington, taken on the examining trial of the defendant, the defense objected “because the affidavit (of the district attorney) did not show that said witnesses were, at the time of trial nor at the time of the examining trial, non-residents of the State of Texas, or otherwise beyond the jurisdiction of said court trying said cause; and because there was no evidence of the fact that the testimony offered was the testimony taken upon the examining trial; or that the witnesses had ever signed the same or been sworn thereto,' and was only a copy; all of which objections were overruled by the court, to which ruling defendant excepts,” etc. The affidavit of the district attorney does expressly state that the witnesses “reside out of the State of Texas, and are residents of the Indian Territory; ” and it is in conformity with the provisions of the statute regulating the practice in such cases. Code Crim. Proc. art. 772.

With regard to the other objections to the written testimony of the witnesses, impeaching its identification and authenticity, counsel cites and relies for authority upon Guy v. State, 9 Texas Ct. App. 162; Dunlap v. State, 9 Texas Ct. App. 179, and Davis v. State, 9 Texas Ct. App. 363. The rules as enunciated in each of these cases upon the subject are correct, and the objections here taken would, under these rules, have been sufficient to have excluded the testimony, if these objections were in fact true. But, as presented in the bill, of exceptions, what evidence is furnished us that the objections were true? It is true the court signed the bill with the objections as set forth, but the allowance and certificate of the judge was not an admission that the objections were true and verified by the record, but simply amounted to a statement by the court that those objections were the ones presented and relied on. Defendant should have incorporated the evidence in the bill of exceptions, or so much thereof as would have verified the truth of his objections. “Bills of exception must state enough of the evidence or *336facts proved in the case to make intelligible the ruling of the court excepted to, in reference to the issues made by. the pleadings.” Rules Dist. Ct. 59; White v. State, 9 Texas Ct. App. 41; Walker v. State, 9 Texas Ct. App. 200; Wright v. State, 10 Texas Ct. App. 476.

But it may be urged that the statement of facts fails to show affirmatively that the objections are not true, and that the evidence of the witnesses taken on the examining trial as copied in the statement of facts is wanting in all the particulars pointed out by the objections. But it will be noted that all the objections go simply to matters of form in the identification and establishment of the depositions as authentic. The rule with regard to the incorporation of depositions in the statement of facts is that “the commissions, notices and interrogatories in depositions adduced in evidence shall in no case be inserted or copied into a statement of facts, but the evidence thus taken and admitted shall appear in the statement of facts in the same manner as though the witness had been on the stand in giving his evidence, and not otherwise in form or substance.” Rules Dist. Court, No. 15. This rule is equally applicable to depositions or the written testimony of witnesses taken on examining trials.

The statement of facts need not show that the prerequisites of the statute with regard to the formal authentication of such evidence have been observed and complied with. Reference, therefore, to the statement of facts cannot aid in determining whether the objections stated in the bill are true or untrue. It devolved upon defendant to show by his bill of exceptions the facts upon which he relied to establish the truth of the objections or the fact that they were well taken. Having failed to do so, his bill of exceptions amounts to nothing, and there was nothing in it upon which we could pass intelligently.

The motion for rehearing is overruled.

Motion overruled, .

Three parties were originally charged with the theft. Upon their arrest they had three separate trials before an examining court; at which trials the testimony of the witnesses was reduced to writing. Subsequently two at least of the parties charged were separately indicted; one of whom was appellant. Upon his trial, two of the most important State’s witnesses being absent, the district attorney made affidavit under authority of article 113 of the Code of Criminal Procedure, that the said witnesses had removed beyond the limits of the State and jurisdiction of the court, and asked to introduce, and was permitted by the court to introduce, the testimony of said witnesses taken at the examining trial of appellant Ballinger. (Code Crim. Proc. art. 112.)

Defendant, for the purpose of impeaching this testi*332mony by showing contradictory statements of the witnesses with regard to the same transaction, offered the written testimony of these same witnesses taken at the examining trial of Gussie Reagan, one of the other parties who had originally been implicated in the crime. The prosecution objected to this impeaching evidence, upon the ground that no predicate had been laid, nor opportunity offered the witnesses for explanation; which objection was sustained and forms the basis of the principal error complained of.

The general rule, and it is the one which has uniformly prevailed in Texas, is stated very concisely and explicitly by Mr. Wharton in his work on Evidence. He says, “ When it is thus intended to discredit a witness by showing that he has on former occasions made statements inconsistent with those made on trial, it is usually requisite to ask him on cross-examination whether he has not made such prior contradictory statements. The question to this effect should specify, so it is said, the person to whom the alleged contradictory statements were made, and as far as possible the time and place. Only upon denial, direct or qualified, by the witness that such statements were made can proof of them be offered. The object of this condition is to enable the witness to recall the incidents and to explain the inconsistency, if there be such. So a witness, not a party, cannot be impeached by putting in evidence his letters unless his attention be called to these letters on his cross-examination, and the other party have an opportunity of examining him thereto. It has been even held that where the deposition of a deceased witness had been by consent read in evidence, another and conflicting deposition of the same witness at a prior trial could not be read in order to impeach the witness, as the attention of the witness had not been called to the conflict.” 1 Whart. on Ev. (2d ed.) § 555.

*333If his prior depositions in the same case cannot be thus used, a fortiori his depositions in another and different case ought not and should not be used. Our statute allowing the testimony of a witness taken at an examining trial to be used subsequently on the final trial, where the witness is beyond the jurisdiction of the court, is an innovation upon the ancient common law, and, in view of the constitutional guarantee that an accused shall have the right to be confronted with the witnesses against him, is permitted solely ex necessitate and under circumstances where it appears he did confront the witness and have the right thoroughly to examine and cross-examine him, whether he exercised the right or not upon all the matters testified to by him. We do not think it would be the part of wisdom or sound policy to extend the rule further, and allow such testimony thus taken to be nullified and destroyed entirely by parties, who from their own laches or indifference have failed to have it as full and satisfactory as it might have been, had proper diligence been promptly used" in the' assertion'and protection of their rights at the proper time. We are of opinion the court did not err in refusing to allow the introduction of the supposed contradictory evidence.

With regard to the witness Leston it was attempted, after the trial' and in the motion for new trial, by the force of counter-affidavits to annul and destroy the affidavit of the district attorney, to the effect that this witness was also beyond the jurisdiction of the court, said affidavit having been made as a predicate for the introduction of his testimony taken at the examining trial. These counter-affidavits came too late to avail defendant, and they fail to show that the facts stated were not accessible, or might not have been accessible by the usé of proper diligence at the time when the affidavit of the district attorney was filed and acted upon. Steps should then and there have been taken by deféndant to contro*334vert the affidavit. He cannot be allowed, after he has failed to complain at the proper time, and has speculated upon the chances, or be heard, to say that wrong has been done him when by his own inaction he has been one of the parties to the wrong. The court did not err in overruling the motion for a new trial, so far as it was based upon these counter-affidavits.

We have examined the record in this case with more than ordinary care, and the two questions above noticed are the only ones requiring discussion. For aught else that appears, defendant seems in our opinion to have had a most fair and impartial trial,—a trial in which the law applicable to the facts was most ably expounded by the court to the jury,— and one in which the inculpatory facts adduced against defendant are amply sufficient to support the verdict and judgment rendered.

The judgment is affirmed.

Affirmed.