Appellant was convicted of the theft of a horse, and his punishment fixed at confinement in the penitentiary for a term of five years. *Page 480
Appellant's first bill of exceptions shows that the State's witness S.H. Hall was asked by State's counsel, if stolen property had not recently been taken from his house by search warrant. He answered, "yes." Then the attorney for the State asked him, if it was not a fact that he told the officers that Pool (defendant) brought said stolen property to his house, and witness answered "yes." And furthere if he had not been subpœnaed as a witness in other cases against defendant; and he had answered he had only been subpœnaed as a witness against defendant in the examining trial in this case. This testimon was purely hearsay, and prejudicial to the rights of the defendant. If the witness knew that appellant brought certain property for which he was being then prosecuted to witness' house, he could testify to this fact, but what he told the officers about the same, was hearsay and criminative evidence of the most damaging character against defendant. The court erred in admitting this evidence.
Appellant's fourth bill shows that the State's witness Ray Thomas, testified that he went up the Pike in Oakcliff, Texas, to a point a few hundred yards distant from where they had seen the horse and buggy a few hours previous thereto, and saw standing in the pike an animal and a man standing in front and near the animal; that he did not go nearer the animal than fifteen or twenty yards, when they turned their buggy around and went back home. That the moon was not shining, and the night was dark; that they ould not tell the color of the animal, nor whether a mare or horse; nor whether it had a rope or anything on it. That he could not tell what kind of color of hat or clothing the man had on, nor whether he was a white man or a negro, and that he had seen thousands of men the size of defendant. After witness had stated that he could not swear that the man he saw was defendant, State's counsel asked witness, whom he thought it was; and he stated that from the size, shape, build and height, I believe it was the same mare I had seen that evening, and that the man was the defendant." The evidence shows that appellant stole the animal in Milford, Ellis County, and carried it to the city of Dallas; and that the defendant was seen in Dallas with the property and afterwards arrested. This testimony was hearsay. The witness could describe the man and animal he saw as best he could, but could not give his opinion or belief that the man was appellant. The same character of testimony was introduced through the witness Gilliam. In each instance the court committed error in admitting the testimony.
The seventh bill shows appellant asked the witness Kennedy on cross-examination: "If defendant made any statement to him with reference to the property alleged to have been stolen, as he was bringing defendant from Dallas to Ellis County?" The court sustained the exception to this question. The witness would have stated, that defendant said he had bought the buggy from a party over in the city of Dallas, and that he did not know anything about the mare. Appellant insists that the court ought to have permitted this testimony, *Page 481 because it was a reasonable explanation by defendant as to how he came in possession of the buggy, and that it was the first opportunity defendant had had to make an explanation. This explanation is appended to this bill: "It was shown in evidence that defendant was arrested for the theft of the mare, and placed in the Dallas County jail by the sheriff of Dallas County, and remained in said jail four or five days before he was brought to Ellis County, by deputy sheriff Kennedy, and made no statement to the sheriff of Dallas County, in regard to the possession of said mare or buggy. It was also shown that defendant evaded arrest by officers of Dallas County at the house of S.H. Hall, when he knew his rights to said horse and buggy were challenged, and did not go out to meet said officers, and state to them the character of his possession." Under the court's explanation this testimony was clearly self-serving and inadmissible, under the rule authorizing the introduction of explanation made of recently stolen property. Following the above qualification, this statement is appended to the bill: "As Judge Dillard was not sworn as a witness in this case, we respectfully ask that it be striken out — all except his approval and signature. J.T. Spencer; E.P. Anderson." It is a well known rule that it is the duty and province of the district judge, as in this instance, to place such explanation to the bill of exceptions as the facts and testimony warrant. However, this must be done with the consent of appellant's counsel. If counsel do not consent, that this be done, then the judge can prepare a bill stating the facts, leaving the appellant the right to prove up his bill, as he understands it, by bystanders. However, here it appears appellant's counsel took the bill with the judge's explanation and asks this court to strike out the explanation. There is no law authorizing this to be done.
Appellant also complains of the argument of counsel. We do not deem it necessary to review the bills presenting this matter, but restate, as we have many times done, that the argument should be strictly within the testimony adduced upon the trial.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.