On Second Motion for Rehearing.
In holding, as we did, in overruling the first motion for rehearing of the Texas Pacific Coal & Oil Company, that certain testimony of Mrs. Standard and Aleck Eakins, set out in the opinion, when considered “in connection with all other -testimony which may be regarded as circumstantial evidence,” constituted some evidence to raise an issue of fact as to the alleged conspiracy, we were of opinion at the time that the other evidence alone would not raise such issue.
Our attention is called to the fact that there was other evidence of the same general nature as that given by Mrs. Standard and Aleck Eakins, being the testimony of Oscar Petty, as follows: “He (that Is, George Powers) said * * * he had béen instructed to carry a gun and shoot anyone he caught out there.” This statement accredited to Powers was made in response to an inquiry from the witness seeking information as to the nature of the instructions that had been given him, and hence the statement was not made by Powers while in the discharge of any of his duties as watchman.
By a second motion for rehearing said ap-pellee points out that all of the testimony which we deemed sufficient to support our conclusion, -and including therewith said testimony of Oscar Petty, was, as to said company, hearsay. The testimony was regarded as evidence of admissions against interest, but it appears to be true (a point we overlooked) that each and all of the statements accredited to Kribs and Powers were not made while in the discharge of the duties owing by either to the Texas Pacific Coal & Oil Company. Their statements therefore were no more the admissions of said company than if made by any one else. They were just as certainly hearsay and therefore incompetent. Southern Surety Co. v. Nalle & Co. (Tex. Com. App.) 242 S. W. 197; Vicksburg, etc., R. Co. v. O’Brien, 119 U. S. 99, 7 S. Ct. 118, 30 L. Ed. 299.
The testimony being hearsay and incompetent should not be considered in determining if there was any evidence of conspiracy Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Hamon v. Sanderford (Tex. Civ. App.) 28 S.W.(2d) 861.
We have therefore concluded that we were in error in holding that the charge of the court was not shown to be immaterial, but on the contrary have concluded that the record affirmatively discloses that it was not harmful, since the evidence did not raise .an issue of fact concerning the alleged conspiracy.
For this reason our former judgment reversing and remanding the case should be set aside, said second motion for rehearing should be sustained, and the judgment of the trial court affirmed, all of which is accordingly so ordered.