OPINION
WOOD, Chief Judge.We reverse defendant’s conviction of armed robbery because of improperly admitted evidence.
The prosecution proposed to introduce evidence that defendant’s brother made certain remarks to the principal witness for the State and also administered a beating to this witness. The trial court permitted the witness to testify that the beating occurred and to identify the persons administering the beating, but would not allow testimony as to what was stated by the assailants. On cross-examination, the defendant brought out that the assailants were defendant’s brother and a boyfriend of the witness’s sister.
The prosecution’s theory of admissibility was that the beating was evidence of tampering with a witness, which showed consciousness of guilt by defendant. The admissibility of such evidence is proper only when there is evidence which connects the defendant with the tampering.
Saunders v. State, 28 Md.App. 455, 346 A.2d 448 (1975) states that such evidence
is not admissible, however, where there is no evidence to connect the accused therewith. In order to make admissible evidence of attempts by a third person to influence a witness not to testify or to testify falsely, it must be established that such attempts were done by the authorization of the accused.
Although the authorization by the accused may be proved by direct or circumstantial evidence . . . and an inference may be sufficient to connect the accused . . . the fact that the third party and the accused are related has not been held to be adequate proof, by itself, of the necessary authorization. . [A]n accused is not bound by the efforts of relatives or friends to suppress evidence unless his connection with the third party is clearly shown.
See Annot., 79 A.L.R.3d 1156 (1977); United States v. Culotta, 413 F.2d 1343 (2d Cir. 1969); People v. Perez, 169 Cal.App.2d 473, 337 P.2d 539 (1959); People v. Caruso, 174 Cal.App.2d 624, 345 P.2d 282 (1959); Steele v. Commonwealth, 262 Ky. 206, 90 S.W.2d 8 (1936); State v. Graves, 301 So.2d 864 (La.1974); State v. Kosanke, 23 Wash.2d 211, 160 P.2d 541 (1945). Compare State v. Ancheta, 20 N.M. 19, 145 P. 1086 (1915).
The “beating” testimony was improperly admitted because of the absence of evidence connecting defendant with the beating.
The State asserts the error was harmless. We disagree. The case for the prosecution depended largely on the credibility of the witness who was beaten. The defense theory, consistent with the evidence, was that the witness and another person committed the armed robbery. In these circumstances, we cannot say the evidence of guilt was so overwhelming that there is no reasonable probability that the improperly admitted evidence contributed to the conviction. See State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App.1978).
The conviction is reversed; the cause is remanded for a new trial.
IT IS SO ORDERED.
HERNANDEZ, J., concurs. SUTIN, J., specially concurring.