The appellant being on trial in the court below, charged with the theft of an animal of the neat-cattle kind, it is shown by bill of exceptions that the State offered to prove by the prosecuting witness, T. N. Montgomery, that, some time after the yearling for the theft of which the defendant was being prosecuted was killed, Sam Estep, the father of the defendant, offered to pay the prosecuting witness for the yearling, and also to pay him what it would cost him (Sam Estep) to hire a lawyer to defend the defendant, if he, said Montgomery, would not prosecute the defendant. Witness Montgomery told Sam Estep he would not -sell himself to any man. The defendant was not present, and knew nothing of said conversation. To which proof counsel objected, on the ground that the above were declarations of a third party and made in the absence of the
We gather from the bill of exceptions and from the explanation given by the judge that the witness, when making the statement set out in the judge’s explanation, was on cross-examination, and that it was after the cross-examinatian had ended that the State’s counsel was permitted to propound to the witness the question which drew forth the testimony to which the objection applies, and that the court supposed that the defendant’s counsel had on cross-examination of the witness drawn from him some part of a conversation had between the witness Montgomery and the father of the defendant, and hence the statement in the judge’s explanation to the effect that the court allowed him to state “the balance of the conversation.”
As we read the record, we are constrained to say that it. does not appear to us that there was any part of a conversation between the prosecuting witness and the father of the defendant drawn out on the cross-examination by the defendant from the prosecuting witness, Montgomery. On the contrary, we are of opinion that the court was under an erroneous impression as to the condition of the examination
We are of opinion that the testimony objected to was purely original proof on the part of the State, and, there being no pretence that the statements were made in the presence of the defendant, or with his consent, or by his authority, and there being no attempt at showing that there was any complicity between the defendant and his father in the perpetration of the crime with which the defendant was charged, the testimony was clearly inadmissible, and should have been excluded by the court. The rule contended for is regulated by art. 751, Code of Criminal Procedure, which • the State was not in condition to invoke. The testimony was clearly hearsay, and in no way binding on or affecting the defendant. 1 Greenl. on Ev., sects. 98-100.
A case might arise in which such an error would not be deemed of sufficient importance to be seriously considered, but in a case like the present, where a conviction is largely dependent upon circumstantial evidence, we can but regard it as prejudicial to the rights of the accused.
With reference to the matter set out in the defendant’s
Complaint is made of the charge of the court, but we find nothing in the charge deserving criticism, except perhaps the latter portion of the charge on circumstantial evidence, which we are of opinion might well be omitted. It is as follows: “But if you cannot account for nor explain the facts and circumstances detailed before you in this case upon any reasonable ground consistent with the defendant’s innocence, then, if you cannot do this, you should convict.” The judge, having charged the jury affirmatively as to what they must believe in order to convict, should not have charged negatively the other side.
Other errors assigned are not considered here, for the reason that they are either not properly presented for revision, or are such as can be corrected on another trial. But because improper testimony on the part of the State was admitted against the defendant, over objection by his counsel, and manifestly to his prejudice in the present case, the judgment will be reversed and a.new trial awarded.
Reversed and remanded.