¶1 ON REHEARING.
¶2 — Appellant renews his complaint of the admission of a written statement made by Noah Rairemore when a witness before the grand jury which found the indictment. If we understand the testimony of grand juror Waddell, who was introduced as a witness for the defense, its effect was to place before the trial jury the fact that said Rairemore when before the grand jury had testified that he did not see any still in operation, and did not see appellant and Hujghey making liquor on appellant’s place on the occasion in question. When Waddell was placed on the witness stand Rattimore had already sworn for the State that he was present on appellant’s place about March 15, 1922, and saw appellant and the Hughey boys making whisky. Waddell’s testimony related to a statement made by one of the Rairemore boys and in effect his testimony was that the statement was made by Noah when before the grand jury, which statement contradicted his testimony as given on the trial. The defense having thus sought to impeach or contradict the witness Rairemore by proving a statement made by him at another time and place variant from the' one made by him while a witness in the case on trial, the rule applied that said witness might be sustained by proof of other statements consistent with his testimony as given on the trial.
¶3 In our opinion the statement of Rairemore might have been proven and introduced for the further reason that- it contradicts Waddell’s statement as to what the witness swore when before the grand jury, and makes it reasonably plain that Waddell did not refer to Noah in his statement that one of the Rairemore boys swore before the grand jury that he did not see the still in operation. The written statement of Noah Rairemore before the grand jury of which Waddell was a member and which returned the indictment in this case, was shown by the testimony of the district attorney to have been made by said witness when before the grand jury, to have been then signed by the witness and sworn to before the foreman of the grand jury. The district attorney testified to these facts. We think the written statement was sufficiently proven up, and that it was admissible in evidence for the reasons here stated and those given in the original opinion.
¶4 The only other matter complained of in the original motion for rehearing was correctly decided against appellant in our former opinion and needs no further discussion.
¶5 The complaints evidenced by appellant’s supplement to his motion for rehearing, if meritorious, should have been presented to the trial *152 court before the change of venue was acted upon. Art. 630, C. C. P. They relate wholly to an alleged variance between the number of a case as returned by the grand jury and the number of a case as transferred from the district court of the county in which the indictment was returned to the district court in which the case was tried., Not having been called to the attention of the trial court before the change of venue was made, the complaint is now too late under the authorities collated by Mr. Vernon under the article of our procedure last mentioned. .
¶6 The motion for rehearing will be overruled.