What Stewart, the alleged owner of the •sheep charged to have been stolen, was told by his herder about the opening of the sheep pen gate was hearsay, and not admissible as evidence. But, while it was error to admit this illegal1 testimony, it may be contended that it was immaterial and irrel-. ■evant to -the issue-, and that, if the other evidence in the case is sufficient to support the conviction, this court should noft reverse. We believe this position to be correct in.all cases except capital. *573ones. It is certainly correct with regard to civil cases and misdemeanors. (Patton v. Gregory, 21 Texas, 513; Bigley v. The State, 5 Texas Ct. App., 101.) In Preston v. The State, i Texas Court of Appeals, 200, which was a capital case, this court said: “When, in a case of this character, improper evidence is admitted over objections, and a bill of exceptions taken to the ruling of the court, we cannot look to the whole case to determine whether there is other testimony sufficient to establish defendant’s guilt, or whether the verdict of the jury was not influenced by illegal evidence.”
In Haynie v. The State, 2 Texas Court of Appeals, 168, which was a felony not capital, the rule is stated to be, that “the admission of illegal evidence of an important fact, material and pertinent to the issue, and which is in addition to other facts, legally in evidence, is erroneous, and a conviction will not be permitted to stand, however certain it may be that the jury would have found a verdict of guilty upon other sufficient evidence adduced upon the trial.” The converse of this proposition even in a felony case less than capital, would seem to follow, viz: that, if the illegal testimony was immaterial and irrelevant, and there was sufficient other evidence to support the conviction, such conviction would not be disturbed because of the error in admitting the illegal evidence. We believe such to be the correct rule of practice for this court in all cases except capital ones.
We must therefore inquire whether this hearsay testimony complained of was material and relevant to the issue. Defendant was charged with the theft of twelve head of sheep, the property of Stewart. It was in proof that Stewart kept his sheep fastened in a pen in the night time, and herded them on the range in the day time. It was the theory of the State, and the correct one we presume, that if there were any of Stewart’s sheep stolen, they were stolen in the night time out of the pen in which they were confined. Stewart testified that he had lost about one hundred head of his sheep, some thirty of which had died, and a few had strayed off into his neighbors’ flocks; but the balance of the one hundred lost sheep could only be accounted for upon the theory that they had been stolen from the-pen. There was no direct evidence that the sheep had been stolen. Ho witness saw them taken. Circumstantial evidence-alone was relied upon by the State to establish the taking.
This being the state of the evidence on the part of the prose-*574■cution, would it not he a material, relevant and pertinent fact to prove that, about the time of the alleged theft, and prior thereto, ■Stewart’s sheep pen had been opened by unknown persons in the night time, while the sheep were confined therein? Would not this circumstance tend strongly to support the testimony of Stewart that he had lost sheep from the pen, and that the same had been stolen ? Would it not very cogently support the theory of the State that sheep had been stolen from Stewart’s pen, and in the night time, and shortly prior to the time when these alleged stolen sheep were discovered by Stewart ? It is not very probable that the alleged theft was committed in the •day time, while the sheep were on the range and in the charge of •a herder. Neither is it probable that the sheep escaped from the pen, and left the flock of their own volition. How, then, account for the loss of so many sheep in so short a time ? There is but one answer to this question: They must have been taken from the pen by some person in the night time. It was, therefore, we ■conclude, not only material and pertinent but important for the State to prove that the -pen had been opened, and such evidence must necessarily bear directly and strongly upon the issue as to' whether or not any of Stewart’s sheep had in fact been stolen. It would have been competent testimony on the part of the prosecution, and could not reasonably fail to strengthen the State’s case.
It was within the power of the State to produce direct proof of this circumstance by placing upon the witness stand Stewart’s herder. This was not done, nor was any reason assigned why it was not done. Circumstantial evidence should not be resorted to when direct evidence of the fact sought to be proved is attainable, . and much less should mere hearsay evidence be relied upon.
We hold that the testimony of the witness Stewart as to the statements made to him by his herder was hearsay and inadmissible in evidence, and that the same was material and well cal-culated to influence the verdict of the jury, to the prejudice of defendant’s rights. The error of the court in admitting this ille.gal evidence is sufficient of itself to demand a reversal of the judgment, and it is unnecessary to the present disposition of the case that we should discuss other questions presented in the record;' but, in view of another trial of the case, it is perhaps proper that we should notice some other matters which may again arise in the case.
*575Witness Stewart was permitted to testify, over the objections of defendant, that when he found his sheep in the flock of Floyd <& O’Neal, he saw other sheep in the flock, the marks and brands of which were so badly disfigured that he could not identify them. It was in proof that defendant had sold this entire flock of sheep to Floyd & O’Neal, and that the marks and brands of nearly all of the twelve head of said sheep which Stewart claimed and took out of the flock had been changed and disfigured, the brand claimed by defendant being placed over the old brands of Stewart. This being the proof upon this subject, it would be a legitimate link in the chain of circumstances tending to connect the defendant with the theft of Stewart’s sheep, to show that in the same flock of sheep which defendant had sold Floyd & O’Neal there were other sheep, besides those Stewart was able to identify, that had also been re-marked and re-branded, apparently at about the same time, and in such a manner as to prevent the identification of the sheep. It must be noted in this connection that Stewart testified he had lost from his flock sixty or seventy head of his sheep which he could not •account for unless upon the theory that they had been stolen, and that he could only identify in the flock of Floyd & O’Neal twelve head of his sheep. It is our opinion that the court did not err in admitting this testimony. (Satterwhite v. The State, 6 Texas Ct. App., 609; Williamson v. The State, 13 Texas Ct. App., 514.)
Tom Jackson, a State’s witness, testified that in the summer of 1882 (which was after the time the alleged theft had been committed, and after Stewart had recovered the twelve head of sheep claimed by him), he was present when a flock of sheep were driven to and penned at the place of one Arrington by one Sam. Hester and others, the defendant, however, not being one of the drivers of the sheep. That Sam. Hester traded those sheep to Arrington, and that defendant assisted in changing the marks and brands of the same. In some particulars the description of these sheep as given by this witness corresponded with the sheep found in the Floyd & O’Neal flock. But, if the witness was correct as to the time when this transaction occurred, they must have been a different lot of sheep, because this occurrence was subsequent to the sale of the flock to Floyd & O’Neal. If the sheep that witness testified about were a different lot of sheep from those found in the Floyd & O’Neal flock, then his testimony can have no connection whatever with the theft charged, *576and would be wholly irrelevant. But, if he was mistaken as to time, and the transaction about which he testifies, instead of' taking place in the summer of 1882, in fact took place in January or February, 1882, then his testimony would be pertinent and material. It may be that the jury concluded that the witness was mistaken as to time, and that the sheep he testified about were in fact the same sheep found in the Floyd & O’Neal flock, which had been sold to said Floyd & O’Neal by defendant.. We think, therefore, that we must regard the testimony of this, witness as material and calculated to probably enter into the consideration of the jury, and perhaps influence their verdict.
It was elicited from this witness, on the direct examination by the State, that the sheep about which he testified were brought to Arrington’s by one Sam. Hester and two other persons, and that Sam. Hester traded the sheep to .Arrington for a horse; that he knew the trade was made because he heard Sam. Hester and Arrington say they had so traded. The court of its own motion excluded Jackson’s testimony as to having heard Sam. Hester and Arrington say they had traded. It was then proposed by the defendant to prove by this witness that he was present when Sam. Hester traded the sheep to Arrington for the horse and heard the trade made. Upon objection made by the State this, proposed evidence was rejected.
It was the opinion of the trial judge that the testimony so excluded and rejected by him was hearsay and therefore not competent. In taking this view of the testimony, we think the learned judge erred. If this witness was present when any such trade was made, and heard the negotiations of the parties thereto, and heard them agree that they had traded, we cannot perceive why his testimony would not be as competent to prove the trade as would be that of the parties to the same. Such testimony would be original and not hearsay. That this testimony would be relevant and material would depend, as we have before stated, upon the conclusion of the jury as to whether or not, the sheep testified about by this witness were the same sheep afterwards found in the Floyd & O’Neal flock. If they were the same sheep, or if the jury might so conclude, then the testimony would show, or at least tend to show, that they had been stolen before the defendant had any connection with them, and sold toArrington, and that defendant had no connection with them until after they had become the property of Arrington; and it would further tend to show that he had purchased the sheep *577from Arrington, for it was not until after the sheep had beeni penned at Arrington’s that the defendant becomes connected with them by assisting in changing their marks and brands by placing upon them other marks and brands. If, in fact, he was not' concerned in taking the sheep, but only became connected with them after they had been stolen by other parties, then he could not be convicted of the theft of them. We think the testimony which was excluded, and that which was offered by defendant and rejected, should have been admitted.
We must say in regard to the facts of this case, as presented to us in the statement of facts, that there is much uncertainty in respect to some particulars. The alleged stolen sheep were missing from Stewart’s flock about the last of February, 1882. They were found in the Floyd & O’Eeal flock in the latter part of March, 1882. This flock had been sold to Floyd & O’hTeal by the defendant on the first day of February, 1882, and the bill of sale thereto was executed on the next day. Witness Jackson’s testimony relates entirely to sheep which were at Arrington’s in the summer of 1882, which was subsequent to the time of the alleged theft. Was this witness mistaken as to time? He says he was working for Arrington at the time, and quit working for him in the summer of 1882. It is of the highest importancé that the time of the transaction which this witness testifies about should bo definitely fixed, if his testimony is to have any bearing on the case. It seems to us that this could be done. When did the witness quit working for Arrington? What time in the summer of 1882, How long before he quit there was it that these sheep were brought there? What kind of work was the witness engaged in at that time? If engaged in farming, what particular work in that line was he doing at the time; preparing to plant, planting, or cultivating, or gathering crops? There seems to have been but little effort made to ascertain the important fact as to the time of the happening of the transactions related by this witness. Upon another trial it is to be hoped that t.bia confusion may be removed and the mystery solved.
Again, the. witness Jackson does not state what marks and brands were upon the sheep when brought to Arrington’s; nor does he describe the brand which defendant assisted in placing upon them; nor does he state when this marking and branding occurred. These were important facts to be proved by this witness, and yet no effort appears to have been made to elicit them.
*578Opinion delivered March 12, 1884.There were five hundred and seven head of the sheep sold by defendant to Floyd & O’Neal, four hundred and fifty of which were freshly branded in a brand claimed by defendant, and fifty-seven head were freshly branded in the Nations brand, which latter brand was owned by Mrs. Nations. In the bill of sale from defendant to Floyd & O’Neal, the two brands are made with a pen, the first resembling the letter H, with a cross stroke projecting beyond each of the upright strokes, so as to form a double cross, and the other being an upright line crossed at the top with a horizontal line, resembling the letter T. In the description of these brands, which had been recently placed on the sheep, the witnesses do not all agree, nor do the descriptions agree entirely with the brands represented in the bill of sale. Particularly is this the case with the new brand on the fifty-seven head of sheep, said to be in the Nations brand. We call attention to these discrepancies, not that we regard them as being very material, but that they may be, if possible, explained on another trial.
With respect to the charge of the court, we do not consider that it was materially erroneous when viewed as a whole. The exceptions taken to it we regard as hypercritical, rather than substantial; but, upon another trial, the learned judge will doubtless so frame his charge as to prevent even these objections.
Numerous special charges were requested by the defendant and refused by the court. In so far as these charges were correct and applicable to the evidence, we think they were embraced in the charge of the court; and, such being the case, it was not error to refuse them.
Because of the errors we have mentioned, the judgment is reversed and the cause is remanded.
Beversed and remanded.