The offense is theft of property over the value of fifty dollars; the punishment confinement in the penitentiary for two years. *Page 366
L. J. Birdwell, the injured party, was buying cotton seed and placing it in railroad cars. According to the testimony of Hamp Rash, Jr., an accomplice, he and appellant took a load of cotton seed out of a railroad car and sold it to the injured party for a sum exceeding fifty dollars. He testified that after they sold the cotton seed to the injured party they placed it back in the same car. The injured party testified that one of his cars came up about 6,000 pounds short. The corroborative evidence is meager and of doubtful sufficiency. However, in view of the fact that the case must be reversed because of an error in admitting testimony, we pretermit a discussion of the sufficiency of the evidence.
The injured party was permitted to testify, over proper objection on the part of appellant, that one of his cars of cotton seed "came up short around 6,000 pounds." It appeared that the knowledge of the witness was based purely on what he had been informed by those weighing the cotton seed in Houston, he not being present when it was weighed. Not only did appellant object to the testimony of the witness on the ground that it was hearsay, but after the witness had testified he requested the court to instruct the jury not to consider it. The testimony was hearsay, and its reception constituted reversible error.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.