Mixon v. State , 28 Tex. Ct. App. 347 ( 1890 )

Willson, Judge.

On the trial, over defendant’s objections, the State was permitted to prove by the witness Hilliard a portion of a conversation between Price, Moak, Ellis, and Shaffer, in relation to the theft of the animal involved in this case. Defendant was not present at said conversation, and the same occurred about one week after said theft. Exceptions to the admission of this testimony appear in the statement of facts, and are, we think, sufficiently full and specific to demand consideration. In our opinion said testimony was inadmissible. It was hearsay, and while considered by itself it does not appear to be material, or in any manner prejudicial to the defendant, yet when viewed with reference to the other evidence in the case, it seems to us to be material, and calculated to injuriously affect the rights of the defendant. We hold therefore that in the admission of said testimony material error was committed.

There are two counts in the indictment. The first charges that the animal stolen was the property of Thomas Porter, and the second that it was. the property of a person to the grand jurors unknown.

By the fourth paragraph of the charge the jury are instructed as follows: “There are two counts in the indictment, in one of which it is alleged that the animal was the property of Thomas Porter, .and in the other it is alleged to be the property of some person to the grand jurors unknown. You are charged that if you should believe from the evidence that the animal was stolen, as charged, it will not be necessary for you to believe that the animal was the property of Thomas Porter, but you must believe that the animal was fraudulently taken, and taken in every other respect as alleged, as the property of some person unknown to the grand jurors, with the fraudulent intent on the part of the defendant to deprive the owner of the animal, and to appropriate it to the use and benefit of some other person than the owner.”

To warrant a conviction under the first count in the indictment it was certainly necessary that the evidence should prove beyond a reasonable doubt that the animal was the property of Thomas Porter, as alleged in. said count.

To warrant a conviction under the second count it was essential that the State should prove that the ownership of the animal was unknown to the grand jury, and that they used reasonable diligence to ascertain the fact of ownership. Willson’s Crim. Stats., sec. 1297.

We think the paragraph of the charge above quoted is erroneous in that it does not state the law applicable to the two counts separately, and does not state the law correctly. Ho exceptions were reserved to the charge,' nor was any error therein complained of in the motion for a new trial, and the error above noticed is for the first time presented on appeal. It is unnecessary that we should determine whether or not under these circumstances said error in the charge would of itself demand a reversal of the conviction. We have called attention to the error in view of another trial of the cause.

Because of the error of admitting in evidence the testimony of the witness Hilliard, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Hurt, J., absent.