Segura v. State

Willson, Judge.

It appears from a bill of exception in the record that, upon the trial of this case, the state proved by one Ussery that on the morning of the day the deceased was killed, he, witness, rode up to where the deceased was at work; that deceased seemed agitated and excited, and told witness that he, deceased, was afraid of that Mexican, meaning the defendant; that this conversation occurred about two hours before deceased was killed; that defendant was at the time in sight, but was not near enough to hear said conversation between deceased and witness. This testimony was objected to by the defendant, because it was hearsay and not part of the res gestee, and the statements of deceased were not made in the presence of the defendant. r

We think the court erred in admitting the testimony. It was clearly hearsay, and did not come within any of the exceptions to the general rule which rejects hearsay evidence. (Campbell v. The State, 8 Texas Ct. App., 84; Green v. The State, Id., 71; Booth v. The State, 4 Texas Ct. App., 202; Anderson v. The *236State, 14 Texas Ct. App., 49; Hammel v. The State, Id., 326.) Under the peculiar circumstances of this case, this illegal evidence was material, and calculated to affect the defendant prejudicially. But whether or not it was prejudicial to the defendant, its admission was such error as must reverse the judgment. (Tyson v. The State, 14 Texas Ct. App., 388.)

Several other questions are presented in the record, and in the brief of counsel for defendant, but they are not such as are likely to arise on another trial of the case, and, not being of general importance, we deem it unnecessary to consume time in their investigation and decision.

Because the court erred in admitting incompetent testimony, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered May 17, 1884,