Maines v. State , 23 Tex. Ct. App. 568 ( 1887 )

White, Presiding Judge.

In this case the assistant attorney-general confesses errors, and the errors are manifest upon the record, and of a character which necessitates a reversal of the judgment.

Appellant has been convicted of perjury committed by him as a witness upon the trial of one Joe Wyers, who was on trial for theft of a steer. Several of the errors complained of relate to the admission of evidence over the defendant’s objection. Several witnesses were permitted to testify to conversations among themselves, and with one Morris, with regard to Morris’s suspicions as to Wyers; and further as to an agreement entered into between said witnesses and Morris as to what should be done by the latter in order to detect Wyers in the theft of cattle, in which business the latter was supposed, by said parties, to be engaged. At "these conversations, neither Wyers nor this appellant were present.

Such testimony was clearly hearsay, and the conversations and agreements were res inter alios acta, and in no manner binding either upon Wyers or this defendant. (Cohea v. The State, 11 Texas, Ct. App., 153; Tyler v. State, Id., 388; Chumley v. State, 20 Id., 547; Kennedy v. State, 19 Id., 618; Hart v. State, 15 Id., 202; Burke v. State, Id., 156.)

Again, the witness Morris was permitted to testify that after he, witness, had testified on the examining trial of Wyers, “I went away to Tyler county because I had been threatened. I had, at the time I was threatened, testified fully on the examining trial of Joe Wyers, and serious threats had been made against me before I went off.” Defendant’s objections were that the evidence as to the threats was hearsay, and that the defendant was in no way connected with the threats, nor with witness’s fleeing the country, if he did so, on account of them. These objections should have been sustained, because it was not shown or attempted to be shown, that the defendant made the threats or had any connection with them, and the testimony was of a most prejudicial character to his interests. (20 Texas Ct. App., 157.)

Again, on this trial the entire record of the proceedings on the trial of Joe Wyers for theft was read in evidence by the prosecution. It was not error to admit this evidence, such testimony being admissible in perjury as inducement, though not to prove perjury. The general rule is “that whenever extraneous matter is admitted in evidence for a specific purpose, incidental to, but which is not admissible directly to prove the main issue, and which might tend, if not explained, to exercise a strong, undue or improper influence upon the jury as to the main issue, injurious and prejudicial to the right of a party, then it becomes the imperative duty of the court, in its charge, to so limit and restrict it as that such unwarranted results can not ensue; and a failure to do so will be radical and reversible error, even though the charge be not excepted to.” (Davidson v. The State, 22 Texas Ct. App., 373; Taylor v. The State, Id., 530; Washington v. The State, ante p. 336.) Ho such explanation and limit to. this evidence was given the jury in the charge of the court.

Opinion delivered June 11,1887.

Other errors are elaborately and ably discussed in the brief of counsel for appellant, but the above are the most material, and. on their account the judgment is reversed and the cause remanded.

Reversed and remanded.