On January 5, 1885, Asberry, John and Reuben Ricks were jointly indicted for the theft of six hogs, the property of *317O. B. Robinson. There being a severance, Asberry was tried alone, convicted and sentenced to two years’ confinement in the penitentiary; and from this judgment and sentence he appeals.
It is insisted that the court erred in admitting in evidence the declarations of John and Reuben Ricks, the defendant not being present.
Robinson, the prosecutor, claimed that his hogs were marked with a swallow-fork and underbit in each ear. This mark was on the hogs killed by Reuben and defendant, and two of them were taken to Lone Oak by Reuben and John and sold, one to Dr. Coppage and the other to Crooks. The hogs were killed by Reuben and defendant on Saturday morning, and on the same day two of the hogs were taken to Lone Oak by Reuben and John Ricks, and sold to Coppage and Crooks. Robinson, the owner, was in Lone Oak when Reuben and John carried the hogs to that place, and, receiving information regarding his hogs from James Smith, he saw Reuben Ricks and had an interview with him about his hogs. In this interview Reuben Ricks “ claimed that they (the hogs) were marked with a crop and underbit in each ear.” He did not claim to have any hogs marked with a swallow-fork and underbit in each ear. Robinson also states that “ neither Reuben or John Ricks claimed the hogs if they were marked with a swallow-fork and underbit in each ear.”
These declarations of Reuben and John being made after the consummation of the conspiracy,— conceding for the argument that a conspiracy had once existed,— to their admissibility against appellant his counsel objected. The learned judge, however, upon this matter instructed the jury as follows: “That the declarations of John and Reuben Ricks, made when the defendant Asberry Ricks was not present, and admitted in evidence, are competent evidence to show the intent with which said John and Reuben Ricks acted in the matter, but are not binding on the defendant Asberry Ricks, nor competent to prove knowledge or intent on the part of defendant Asberry Ricks.”
Heitker Reuben nor John, but defendant alone, was on trial. If these parties had conspired together to steal Robinson’s hogs, the conspiracy was at an end. Hence the acts and declarations of a co-conspirator were not admissible against a fellow conspirator. But the learned judge instructed the jury that these declarations were admitted to show “ the intent of Reuben and John, but could not be used to prove the knowledge or intent of defendant.” How we cannot possibly comprehend how the intent of John and Reuben could be material to or have any bearing on this case, unless it be *318to show the intent of Asberry. Under the peculiar facts of this case, the intent was the pivotal point, and was very properly understood to be so by the learned judge below; hence this charge. In this case the intent is the gist of the offense, and, in order to convict the jury must be satisfied from the evidence that defendant took the hogs of O. B. Bobinson with a criminal intent — that is, with intent to steal them.
The intent being the turning point under the facts of this case, it was of the first importance for the State to establish this point against defendant by proof of some fact or circumstance showing, a fraudulent or thievish intent. The declarations of Beuben and John, now under discussion, had a strong tendency to make this proof. Beuben, John and Asberry are charged with theft; the issue, the pivotal point, is the intent of Asberry. There is proof that the parties acted together. The State proves that Beuben and John were prompted by a fraudulent or thievish intent. Asberry acted with Beuben and John, Inference: Asberry acted with the same fraudulent intent.
But the jury were told that these declarations could not be used for the purpose of proving the intent of Asberry. Then for what purpose could they be used ? To show the intent of Beuben and John we are told. But what has the intent of Beuben and John to do with this case (they were not on trial), if their intent would not elucidate the intent of defendant? These declarations were most certainly and clearly inadmissible for want of relevancy, unless for that purpose.
It may be urged, however, that, as the jury were instructed that the declarations of Beuben and John were not binding on defendant, nor competent to prove knowledge or intent on his part, therefore' all that was calculated to injure defendant was withdrawn from the consideration of the jury, and hence there is no wrong shown to appellant. Under the facts of this case we cannot agree to such a conclusion. These declarations were not withdrawn from but left to the consideration of the jury, and, as we have seen, they could serve but one purpose; that is, to show an identity of intent on the part of all concerned. There was eminent danger that the jury used them for this purpose. From the fact that they were left with the jury, and coulcl serve but one purpose, the inference is quite probable that they were applied to that purpose by the jury; and hence the defendant was injured thereby.
In his opening speech the district attorney said: “ Gentlemen of the jury, the witnesses for the defense have sworn lies, and have *319come here for that purpose. I will show it by the testimony. They know that they have sworn lies, and if it was not so they would not allow me to say it, but would make mince meat out of me when I charge them with having done so.” We deem it proper — yea, an imperative duty on our part — to sternly and emphatically condemn such conduct. Such bullying and defiant conduct was highly calculated to provoke the most serious results, and that, too, in the very temple of justice; a place in which the highest order and decorum should be preserved.
The district attorney was not content to brand the witnesses as perjured liars, but calls the jury to witness that he proves the charge. How? Because they will not resent the terrible insult by at least an aggravated assault and battery,— thus subjecting themselves to fine and imprisonment. Such conduct should not be tolerated for a moment, and if the court had knowingly permitted the same, we would feel it our duty to reverse the judgment because of this matter. However, the court’s attention was not called to this matter at the time, and when this was done the court reproved the attorney by stating that such remarks were highly improper. We think from the circumstances and nature of the remarks that the court should have gone further by instructing the jury that the credibility of the witnesses could not be tested in any such manner; but, as this matter will not arise upon another trial, we deem it unnecessary to determine whether or not it is reversible error.
Appellant proposed to prove that the general reputation for truth and veracity of Gentry, a witness for defendant, was good, because attacked by the district attorney in his argument. We have found no case or authority holding that such proof can be made unless the credibility of the witness is attacked, or attempted to be questioned, by some evidence adduced on the trial. There was no error in refusing this proof.
We have examined the other matters complained of in the very able brief of appellant’s counsel, but fail to find a reversible error save the assignment that the verdict and judgment are not supported by the evidence. We will not discuss at length the evidence as presented in the statement of facts; but after a very careful perusal of the same, we are impressed with the conviction that it is not sufficient to support this conviction.
As already observed, the intent with which defendant participated in this transaction was the vital question in the case. How, upon this point we are clearly of the opinion that the evidence for the State, the weight of the testimony, negatives the fraudulent in*320tent. We are satisfied that no impartial mind can read" the evidence and arrive at any other conclusion. This is not a case of conflicting testimony upon the question of intent. Giving, therefore, to the evidence its greatest criminative force, and yet its cogency will be found insufficient to warrant conviction.
Because the court erred in admitting the declarations of John and Reuben Ricks, and because the verdict is not supported by the evidence, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered November 11, 1885.]