It ivas error to admit in evidence the declarations made by Homer Smith. These declarations were not called for by the defendant in cross examining the witness who testified to them. They were hearsay, and very damaging to the defendant. They were not admissible evidence against the defendant for any purpose.
The court in its charge directed the jury “to find the defendant guilty if he and Homer Smith were acting together fraudulently, and the horses were taken by either of them.” This paragraph *487of the charge was excepted to, and the exception is, we think, well taken. ' It should have explained that, to constitute the defendant a principal in the theft, he must have taken the horses himself, or must have acted together with Homer Smith in committing the theft, knowing at the time the fraudulent intent of said Smith, and, if not present with Smith at the time of the commission of the theft by said Smith, must have been acting with him at the very time of the commission of said theft in pursuance of a common design existing between them to commit the theft. (Smith v. The State, 21 Texas Ct. App., 122; Cook v. The State, 14 Texas Ct. App., 96; Bean v. The State, 17 Texas Ct. App., 61.)
Opinion delivered December 14, 1887.The above mentioned are the only material errors disclosed by the record. The judgment is reversed and the cause is remanded.
Reversed and remanded.