Hammel v. State , 1883 Tex. Crim. App. LEXIS 181 ( 1883 )

White, Presiding Judge.

It was no valid objection to the indictment that it alleged conjunctively that the property was taken without the knowledge and consent of the owner, instead of charging disjunctively that the taking was, in statutory language, “without the knowledge or consent.” Such mode of allegation is ordinarily the better practice. (1 Bish. Crim Prac., 15 ed., secs. 585, 586, 587.) The court did not err in overruling defendant’s motion to quash.

We are of opinion that the court did err, however, in permiting the witness Gammel to testify, over objections of defendant, what the deceased party, Glover, told him, witness, about the loss of his money. This evidence was hearsay, and the fact that Glover was dead did not render it admissible or legal.

We are further of opinion that, besides this erroneous ruling •of the court, the other evidence, as shown in the statement of facts, is not sufficient to support the conviction; and. the judgment is reversed and the cause remanded.

Reversed and remanded'.

Opinion delivered June 2, 1883