Cavenar v. State

State's counsel challenges the correctness of the conclusion reached in the original opinion that there was no evidence to the effect that the appellant's sons were parties to the offense which justified the testimony that one of them, in the absence of the appellant, had made a declaration calculated to impress the jury with the belief that the son regarded his father guilty of the offense charged.

The evidence raised the issue upon which the case was tried, namely, that the appellant, George Cavenar, and the State's witness, R.K. Beck, were principals in the manufacture of intoxicating liquor. They were present when the still was discovered, and the court instructed the jury on the law of principals pertaining to them. The appellant denied his guilt, and the declaration of his son was not admissible upon any theory unless that of co-conspirators. The statement of facts is voluminous. Its analysis is not deemed practicable nor necessary. Suffice it to say that our re-examination of it leaves us of the opinion originally expressed, namely, that in receiving in evidence the declaration mentioned, there was prejudicial error committed.

The motion for rehearing is overruled.

Overruled.