Neeley v. State

11 S.W. 376, 27 Tex. Ct. App. 315, 1889 Tex. Crim. App. LEXIS 38

Opinion

Willson, Judge.

This conviction is for the theft of a horse. On the trial, hearsay evidence as to the theft of a saddle at or about the same time and place that the theft of the horse occurred was admitted, but upon motion of defendant was excluded. Thereafter evidence offered by the State was admitted identifying a saddle found in possession of the defendant at the same time he was found in possession of the alleged stolen horse, as a saddle belonging to one Palm. Defendant moved to exclude all testimony relating to said saddle, which motion the court overruled, and instructed the jury with respect to said testimony that it should not be considered unless it tended to show the identity of the transaction of the theft of the horse, or to explain the intent of. the defendant, etc. This instruction was excepted to by the defendant.

We are of the opinion that the court erred in not excluding all the evidence relating to the saddle. There was no legal evidence before the jury that the saddle had been stolen, and the testimony in regard to it, and which the court refused to exclude, was irrelevant, and was calculated to prejudice the rights of the defendant, especially when the attention of the jury was directed to it by the charge of the court. There being no legal evidence relating to the theft of a saddle, or of other property than the horse, the instruction as to other stolen property was not warranted and was therefore error.

Opinion delivered March 6, 1889.

It is unnecssary to notice other questions made in the record. For the errors mentioned the judgment is reversed and the cause is remanded.

Reversed and remanded„