Richardson v. State , 49 Tex. Crim. 391 ( 1906 )

This case was affirmed at a former day of this term, and now comes before us on motion for rehearing. A majority of the court believe that the testimony of the State's witness to the effect that when he approached where defendant and the jennet were in the lane, defendant was cracking the jennet, was not admissible; and the court below erred in allowing it to be introduced as it was an opinion and conclusion of the witness. The writer does not agree to this, but believes that the testimony was admissible as stated in the original opinion.

A re-examination of the bill of exceptions taken to the action of the court in excluding the testimony of the father of appellant, to the effect that he was familiar with the jennet in question and her size; that she was a large jennet, and that he knew the size and height of the defendant, and that with his knowledge of the size and height of the jennet and height of defendant, that the defendant could not have copulated with said jennet standing on level ground, — has convinced us that the bill is comprehensive enough to raise the question as to the action of the court in excluding the same. The bill being sufficient we hold that the testimony should have been admitted. The motion for rehearing is granted, and the judgment is reversed and the cause remanded.

Reversed and remanded.