Blackburn v. State , 139 Tex. Crim. 80 ( 1940 )

By proper proceeding, appellant's Bill of Exception No. 2 has been corrected so as to show that same was approved originally by the trial court and that the error in the transcript was made by the clerk. As indicated in the original opinion, the evidence complained of in said bill was improperly admitted and is of a nature that is very damaging to the appellant. The prosecuting witness testified that he reported to the sheriff, on the night of the robbery, that he had been robbed and that the appellant was the one who did it. The sheriff did not arrest him for several days. His failure to do so was considered by the appellant as a circumstance in denial of the evidence given by the prosecuting witness. To overcome this, the State offered to prove, and was permitted over appellant's objection, to show by the sheriff that he was waiting to get additional information on the subject and that finally some one told him that the appellant had some money, which he took as a circumstance indicating his guilt and caused him forthwith to arrest the appellant. This evidence was the rankest hearsay, and of course, was inadmissible from the lips of the sheriff for any purpose. If it was evidence of guilt, to the sheriff, it would be as much so to the jury. Had the State offered the testimony of the party who saw the money, a different question would be presented.

The motion for rehearing is granted, and the cause is reversed and remanded.

ON STATE'S MOTION FOR REHEARING.