Nuckolls v. State

27 Tex. Ct. App. 690 | Tex. App. | 1889

Willson, Judge.

That portion of the testimony of the State’s witnesses D. Gilvin and Jack Evans, which states that Bill Evans told them that one Whitley said the stolen plow was on a rail pile in defendant’s lot, was clearly inadmissible, being hearsay, the said statement of Whitley not having been made in the presence and hearing of defendant.

Under the peculiar facts of this case, said illegal testimony was well calculated to injure the defendant in the trial. Whether or not the defendant had any agency in placing said plow on said rail pile in his lot was a'most material issue in the case. On the evening before the plow was found on said rail pile, Gilvin and Bill Evans had searched said premises for said plow, and had failed to find it. Bill Evans testified that in making said search they had been near to said rail pile, and if the plow had been there he thinks they would hav.e discovered it. He further testified that he did not remember telling- said Gilvin and Jack Evans that Whitely had told him the ,-pIow was on the said rail pile—did not think he had told them any such thing.

Opinion delivered May 22, 1889.

The theory of the defense was that said plow had been placed on the rail pile during the night, pending the search for it, by some person other than the defendant, and without his agency or knowledge, with a view, as the defendant asserted, of “putting up a job on him.” It was material error, we think, to admit said testimony, which error, having been properly excepted to, requires a reversal of the judgment.

There are other supposed errors presented by defendant, but, after a consideration of these, we think the only reversible error disclosed by the record is the one above stated, and because of which the judgment is- reversed and the cause is remanded.

Reversed and remanded.