Moody v. State
24 Tex. Ct. App. 458
| Tex. App. | 1887
Willson, Judge.

It was error to admit in evidence against *477the defendant the petition, citation and judgment referred to in bill of exception Mo. 3. These matters were hearsay, were in no manner relevant to the issue on trial, and tended in no degree to throw legitimate light upon that issue. They were not admissions, either express or by acquiescence, made by the defendant. We know of no rule of evidence which rendered them admissible for any purpose, and the recitals and statements therein contained are such as would be very likely to improperly influence the minds of a jury adversely to the defendant. (1 Greenleaf Ev., secs. 537, 538, 539; Pinckford v. The State, 13 Texas Ct. App., 468; Allison v. The State, 14 Texas Ct. App., 402.)

Opinion delivered December 14, 1887.

But, even if the said testimony had been admissible for the purpose named by the learned trial judge, it was material error to fail to instruct the jury that it could be considered by them for that purpose alone. (Pinckford v. The State, supra; Mayfield v. The State, 23 Texas Ct. App., 645; Whalen v. The State, Id., 598, and cases there cited; Maines v. The State, Id., 568.)

We are not prepared to say that the testimony of the witness Hulen is incompetent. As a circumstance bearing upon defend- ■ ant’s intent in relation to the fund in his charge, we think it was admissible, although remote.

With respect to the charge of the court, it is not materially erroneous except in the particular above mentioned. When considered as a whole, it sufficiently and correctly explains the law of the case.

Because the court erred in the admission in evidence of the petition, citation and judgment referred to in defendant’s bill of exception Mo. 3, the judgment is reversed and the cause is remanded.

Reversed and remanded.