The State presents a motion for rehearing further contending that the evidence relative to the manner of operating oil wells on appellant's property was proper; that it was made so by the defense issues brought into the case by appellant and that in no event could it be construed harmful. The State has presented no authorities in behalf of such contention.
The reasoning in the original opinion appeals to the writer as being sound. The evidence is foreign to any issue in the case. It bolstered the position of the prosecuting witness before the jury and prejudiced them against appellant in the matter of the controversy between him and the injured party. It presented an occasion for the jury to decide which of the two was right and which was wrong in a matter which might have been of value to the decision of some issue in a civil proceeding but was wholly incapable of aiding the jury in any proper consideration of the issues presented to them in this case. On the return of the jury's verdict, appellant was justified in feeling that something had harmed him. In the state of the record, we are unable to say that the evidence thus presented had no part in it.
The case was properly reversed and the State's motion for rehearing will be denied. *Page 273