Appellant complains of our disposition of his bill of exceptions No. 4, which set up that Otto Wilson, prosecuting witness, was asked by the State if he had made an affidavit *Page 110 before the county attorney as to the transaction and from whom he bought the whisky, — which he answered in the affirmative over appellant's objection. Neither the affidavit nor its contents was in evidence. Just how such testimony could harm appellant is not perceived. He was not named in the question or answer as the party referred to in the affidavit. We further note that the bill fails to show in itself facts by which we might affirmatively know that the matter asked about was without materiality. No reason is advanced upon which we would be justified in upholding this complaint. Long v. State, 124 S.W. Rep. 640, (cited by appellant) is not analogous. In that case a man found in possession of a bottle of liquor, told the officer where and how he got the liquor, took him to the place and told him that was where he got it. This was putting the conversation had between the officer and the purchaser, out of the presence of the appellant, before the jury, and was plainly hearsay. Appellant quotes a part of the syllabus in the case of Kirksey v. State, 125 S.W. Rep. 15, but the opinion of the court goes much further in its statement and clearly demonstrates that the testimony referred to was not admissible. The state was there trying to bolster up its witness and asked him if he had told the truth in this case, and he affirmed that he had and stated various times, places and persons when and to whom he had told the truth about said transaction. Such testimony was manifestly improper. Testimony that one K, in the absence of the accused, told a witness who testified to that fact that he bought the whisky from the accused, would be hearsay as held in Shepherd v. State, 196 S.W. Rep. 541. None of these authorities aid appellant in his contention.
Testimony relative to the identity of liquor offered before the jury, such as that the alleged purchaser delivered the liquor gotten from the accused to a named or described other person; that it was in a bottle or container of a given description; that it had been in a certain place, — all became material and was not open to the objection that such facts were res inter alios acta.
We regret our inability to agree with appellant's complaints of our conclusions of law, and are also of opinion that the jury having accepted as sufficient the testimony of the witness that the whisky was bought from appellant, we are not at liberty to set aside their finding.
The motion for rehearing will be overruled.
Overruled. *Page 111