Montgomery v. State , 23 Tex. Ct. App. 650 ( 1887 )

Willson, Judge.

Upon the trial, W. Caviness, the owner of the alleged stolen horse, testified, in behalf of the State, over the objections of defendant, as follows: “I went to M. L. Montgomery’s house. Defendant was absent. Defendant’s father, M. L. Montgomery, was present. I told him that his son had carried off my horse. He replied that he did not know, as he had been absent at his ranch all winter, and when he came back he found that the boys had been doing some dirty work; that he tried to break it up, and that he had turned out of the pasture some horses that had been burnt; that the defendant was not there, but had gone to Nolan county and had taken a horse with him that did not belong to him, and that he would try and get him back and send him to witness.”

This testimony was clearly hearsay, and inadmissible, and was well calculated to prejudice the defendant in the minds of the jury. In view of the legal evidence in the case, the error of admitting it can not be regarded as an immaterial one. It was an error for which the conviction must be set aside, and the disposition of the case upon this ground renders it unnecessary that we should determine other questions presented in the record.

Opinion delivered June 22, 1887,

The judgment is reversed and the cause is remanded.

Reversed and remanded.