Appellant makes serious complaint in his motion of our disposition of his bill of exception No. 5. We have carefully examined it again. The state's witness, Martin, was on the stand testifying to what occurred the morning after the alleged rape. He said "Vickers (appellant) went on to work, and after he went on to work, Mrs. Vickers told me —". At this point appellant objected to what anybody told witness out of the presence and hearing of appellant. The court overruled the objection and witness swore that Mrs. Vickers, appellant's *Page 245 wife, told him that morning what she had wanted to tell him the night before was that she had more trouble than she could bear; that Vickers had carried her little girl in the pasture on the day before and brutally abused the child and that she wanted a message sent to her boys, and that she had been prevented by Vickers from sending the message, and that it was impossible for her to get a message. At this point appellant renewed his objection and the court sustained the same. The bill states that the court did not instruct the jury not to consider this testimony, and in our original opinion we seemed to consider the fact that appellant did not ask a special charge instructing the jury not to consider the testimony as rendering the complaint of the testimony unavailing. A careful analysis of the bill shows that appellant's complaint in said bill is not of the refusal of an instruction, but is based on his objection to the admission of the hearsay and damaging testimony. The witness had reached a point where his language indicated that he was about to state what Mrs. Vickers "told" him. This objection the court overruled and permitted the witness to testify what she told him. This was hearsay of a very damaging character and should not have been admitted. The bill has no qualification and no explanation and shows that the exception taken was to the admission of the hearsay evidence.
We hardly think that after admitting it over a valid objection that thereafter sustaining an objection renewed would put appellant in such an attitude as to deprive him of his rights to complain at the admission of the testimony.
As above stated, the testimony was hearsay of the very rankest type, and was very damaging to the appellant's defense in the case. It follows, from what we have said, that in our view the judgment of affirmance should be set aside and the motion for rehearing granted, and the case should be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 246