142 F. 116 | 8th Cir. | 1905
after stating the case as above, delivered the opinion of the court.
To support its case in chief the plaintiff produced as a witness one Hempstone, its foreman, who testified that on June 30, 1901, the sheep of plaintiff and defendants became intermingled on the lands of the former, and after their separation at some distant corral the defendants’ ■sheep were brought back to the neighborhood of plaintiff’s camp. He also testified to certain conversations with some of the defendants relative to their pasturing, and their plans for the ensuing season.
The plaintiff assigns 11 errors in the admission of evidence on behalf ■of the. defendants. With an exception presently to be noted this evidence related to the above-mentioned matters testified to by Hempstone. Part of the evidence objected to consisted of defendants’ version of the
But there is another matter in connection with the evidence admitted that is of a more serious character-. Defendants’ witness Monroe was-allowed to testify over the plaintiff’s objection that Hempstone told him about May 20, 1901, that they (the plaintiff and its employés) were going to make Farr (a defendant) all the trouble they could that summer, and that just as soon as the lambing season was over and Farr went out with his wagons he was going to follow him up with dry bands of sheep. Hempstone had not testified in chief to any such conversation: nor had his attention been directed to it upon cross-examination. It occurred, according to Monroe, more than a month before the trouble;, which arose in the latter part of June, and it did not accompany any act of Hempstone so as to be a part of the res.gestae. The admission: of the testimony of Monroe was therefore erroneous. Its prejudicial character is manifest when it is observed that it was strenuously contended by defendants all through the trial that the plaintiff’s employés^ including Hempstone, were the aggressors, and that they were following the defendants with bands of sheep and endeavoring to prevent them' from using the unoccupied public lands.
We refrain from considering the other assignments of error, for the reason that the matters therein embraced may not again arise.
The judgment of the Circuit Court is reversed, and the cause remanded, -with direction to award a new trial.