Estes v. State , 23 Tex. Ct. App. 600 ( 1887 )

Willson, Judge.

I. The court erred in permitting the witness, L. Sharp, to testify, over objection of defendant, as follows: Witness was asked by the prosecuting attorney if the man who was wounded but not instantly killed, in San Augustine county, ever spoke afterwards. Witness replied he did not. Witness was then asked if anything transpired by which witness could tell whether the wounded man was conscious, and, if so, to state what it was. Witness answered yes; that on Monday morning after the shooting on the night before, a negro who lived in the community came up and said he knew that man, and pointed to the man Gool, and said his name was Dupree. Witness told the negro to call him by his name and see what he would do or say; that the negro called two or three times and then called Hm Jack Dupree, at which call the man raised up and looked around, but said nothing, and lay down and died in a short time. This was hearsay testimony, and did not come within any exception to the general rule which excludes that character of evidence. (Fuller v. The State, 19 Texas Ct. App., 380; Anderson v. The State, 14 Id., 49; Jackson v. The State, 20 Id., 190; Harris v. The State, 1 Id., 74.) If Gool had stated to the witness Sharp that his name was Dupree, such statement would have been hearsay and inadmissible against defendant. This illegal evidence was material, and was calculated to prejudice the defendant, as it tended to identify the man Gool, killed in San Augustine county, the supposed man who stole the horses in Angelina county, as John L. Dupree, a person well known to defendant, it being a material issue in the case as to whether or not the man called Gool, from whom defendant purchased the horses, and who was afterwards killed in San Augustine county, was John L. Dupree.

II. It was error to permit the witness Atkins to testify about a conversation he had with Lee Estes concerning a horse which said Lee Estes had purchased. This testimony was hearsay— was after the offense, if any, had been committed and consummated in pursuance of a conspiracy between defendant and Lee Estes, even if such conspiracy had existed, and was not admissible under any rule of evidence known to us. (Chumley v. The State, 20 Texas Ct. App., 547; Ricks v. The State, 19 Id., 308.)

III. We will pass over some other errors assigned, which are not deemed material or likely to occur on. another trial, and determine the last error insisted upon by the defendant, which is that the court erred in refusing the defendant a new trial, because the evidence does not support the conviction. In our opinion, this error is well assigned. Every inculpatory circumstance of any cogency is explained and accounted for by the evidence in the case. Defendant’s explanation of his acquisition and possession of the horse was a reasonable one, and was not disproved but strongly corroborated by the other evidence in the case. There is no satisfactory evidence, direct or circumstantial, that at the time he purchased the horses he had any knowledge, or even suspicion, that they were stolen property. That he did purohase the horses, paying therefor almost if not quite their fair value, the evidence abundantly establishes. That the man called Gool, from whom he purchased said horses, was a stranger in that section, and was not John L. Dupree, was testified to most positively by several unimpeached witnesses. There is nothing in the conduct of the defendant with respect to the horses that indicates a knowledge on his part that they were stolen or that he received them fraudulently. In the whole evidence, which we have scrutinized closely, we are unable to find a single fact unexplained, which points with certainty to the defendant’s guilt of the offense of which he stands convicted. We think the trial judge should not have hesitated to set aside the verdict of the jury.

Opinion delivered June 15, 1887.

Because of the errors we have mentioned, the judgment is reversed and the cause is remanded.

Reversed and remanded.