Henry 0. Rogers was convicted of forgery. The record informs us of the loss of the original indictment in this case, and that the county attorney filed a written statement, suggesting the loss and asking leave of the court to substitute said indictment, and that the court, upon being satisfied that a copy submitted by the county attorney was correct, ordered that said leave be granted, and the county attorney was allowed to substitute said original indictment by the copy then shown and submitted to the court, which was filed by the clerk. Upon this indictment the defendant was tried and convicted. The defendant moved in arrest, and this motion was overruled and the defendant. excepted.

The question presented is, was the conviction under this substitution or copy legal ? The counsel for defendant insists that it was not, because from the record it appears that all that was done in regard to this matter was to suggest the loss, ask and obtain leave of the court to substitute a certain copy which was submitted to and inspected by the court; but that in fact there was no judgment of'the court declaring the fact of substitution.

The record must speak the fact affirmatively that the substitution as proposed by the county attorney was made. It may be urged, however, that there appears •from the record enough from which to presume that in fact the substitution was made. If, in fact, the court did not order and adjudge the substitution there was no indictment in the case; hence we cannot indulge in presumptions; the record must speak that fact, not by way of inference, but directly and affirmatively. Turner v. State, 7 Texas Ct. App. 596; Crosswell v. Byrnes, 9 Johns. 286; Beardall v. State, 9 Texas Ct. App. 266.

*620The State proved by H. B. DeBray as follows: “I am Spanish clerk and translator in the Land Office of Texas, and am custodian under the commissioner of the Spanish archives of that office. I have in my hands a book containing some of the original Spanish titles. In one of these appears the name of Edward Gritten in three places purporting to be his signature. These signatures appear to the application of Edward Gritten to become a colonist under the Mexican government; the second to his application for the grant of a league and labor of land as a colonist; and the third to his application for an augmentation of one-fourth of a league, (These three signatures are handed over to the jury and exhibited to them, to compare with the signature to the deed alleged to be forged.) I have an entry here in the book of entries of work. Entry: On 20th November, 1813, application was made to the Land Office by Weller and Rogers for translation of title to the Gritten league of land in Travis county and quarter of league in Bastrop county. The books show application for translated copies, and this book is one of the Land Office records. . The rule of the office is, an application is made for the copy, and after it is made it is handed to the receiving clerk, who delivers it on payment of fees. The signatures referred to of Edward Grit-ten appeared to be written by the same person, were all well written, and had attached an extensive rubric or flourish of pen at end of each.”

On cross-examination this witness DeBray testified as follows: “I only testify what is in the books. They are records of the office and show that application was made.” On re-examination by the State, this witness testified: ‘ ‘ The book is a memorandum of original entries. I think the handwriting is Mr. Goldbeck’s.”

Counsel for the defendant objected to this evidence: 1st, because the same is incompetent and irrelevant; 2d, because the person who made such entry has not been *621brought into court, to testify thereto, and has not confronted this defendant according to law.” Which objections were heard by the court and overruled, and the defendant excepted.

Was this evidence competent? A majority of this court hold that it is, upon this principle, or rule of law: The rule that the prisoner shall be confronted with the witnesses against him does not preclude such documentary evidence, to establish collateral facts, as would be admissible under the rules of the common law. U. S. v. Bennie, Baldwin, 240; U. S. v. Little, 2 Wash. C. C. 205; U. S. v. Ortega, 4 Wash. C. C. 531; Cooley’s Const. Lim. 3d ed. p. 318, and note; also 1 Bish. Crim. Proc. secs. 1131, 1132, 1133.

The writer is not prepared to assent to the conclusion that this evidence is competent or admissible. Since the destruction of the library at this place, we have not been able to examine, as we should like, the subject under the light of authorities; we are not, therefore, prepared to give our reasons at this time. There is no division on the relevancy of the fact, if shown in the proper manner, that defendant procured the translation, etc. The point of difference is the manner of making the proof.

The forgery being made without the State, appellant’s counsel argues with great force and ability that defendant, though he may have acted with those engaged, and have furnished the necessary information to consummate the forgery, and though eveiy act of defendant was done in Travis county, cannot be tried and convicted of the forgery in this State, and that proof that the forgery took place in another State does not support the allegation that it occurred in Travis county.

The first question presented, to wit, that the defendant cannot be tried and convicted in this State, is treated at great length in Ex parte H. O. Rogers, 10 Texas Ct. App. 655.

*622The second point, that “proof of the forgery in another State fails to support the allegation that it was made in Travis county,” we think is involved in the first; and if that has been properly decided against the appellant the second must be, especially when all of the acts of defendant were done in Travis county.

There are quite a number of assignments made by the appellant which to consider seriatim would require time that would not be profitable; the questions presented having been exhaustively discussed in the case of Ex parte H. O. Rogers v. State, and several other cases of ■ the same school.

The record failing to show that the indictment was in fact substituted, ‘the court should have sustained the motion in arrest. The judgment is reversed and the cause remanded.

Reversed and remanded.