
    OGBURN v. STATE.
    (No. 9365.)
    (Court of Criminal Appeals of Texas.
    June 26, 1925.)
    1. Criminal law <&wkey;4I9, 420(1) — Testimony as to seeing and hearing stolen automobile identified held inadmissible as hearsay.
    In prosecution for theft, testimony that witnesses saw and heard another identify automobile, alleged to have been stolen, as his, held inadmissible as hearsay.
    2. Criminal law <&wkey;1169(2) — Admission of hearsay testimony as to identification of stolen automobile held not reversible error.
    Admission of hearsay testimony that witnesses saw and heard another identify automobile, alleged to have been stolen, as his, held not reversible error, in view of other uncontrovert-ed testimony as to theft, recovery, and identification of ]iis automobile.
    3. Witnesses <&wkey;>374(2) — Witness’ statement on -cross-examination at examining trial held admissible to affect his credibility.
    Statement by witness on cross-examination at examining trial, “I have been told that, if I would come up here and testify, that it would help me down there,” held admissible to affect his credibility.
    '4. Witnesses &wkey;>363( I) — Motive or declaration tending to show bias, interest, or prejudice, or any mental condition affecting credibility, may be proved.
    Motive or animus actuating witness at time of his testimony is never immaterial or collateral matter, and adverse party may prove any motive or declaration of witness tending to show bias, interest, or prejudice, or any other mental condition tending to affect his credibility.
    Commissioners’ Decision.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Lee Ogburn was convicted of theft, and appeals.
    Reversed and remanded.
    See, also, 96 Tex. Or. R. 339, 257 S. W. 887.
    Keeney & Dalby and G. C. Barkman, all of Texarkana, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the-district court of Bowie county for the offense of theft, and his punishment assessed at confinement in the penitentiary for a term of four years.

Bills of exceptions 1 and 2 complain at the court’s action in permitting the witnesses Palmer and Jordan to testify that they saw and heard Dr. Thompson identify a Ford automobile as being his. The Ford automobile thus identified by Dr. Thompson is the one alleged to have been stolon. It is made to appear by those bills of exceptions that this testimony was objected to as being hearsay, and we think the admission of this testimony was error; but in view of the fact that there seems tó be no denial in the record that Dr. Thompson’s automobile had been stolen, and that it was recovered, and that the identification of the same was perfect and complete, from testimony other than that objected to, this case should not be reversed on account of the error of the court in admitting this testimony. Jamail v. State (Tex. Cr. App.) 268 S. W. 473.

The witness Virgil Ogburn is the chief, if not the only, witness relied upon by the state to connect this appellant with the recent possession of the stolen automobile after it was taken. The state must rely largely upon the testimony of the witness Virgil Ogburn to make a case against this appellant. The witness Virgil Ogburn, the record shows, lives in Louisiana, but testified in the examing trial of this case in Tex-arkana, and his testimony given in the examining trial was reproduced in part by the state in the trial of this case. It was reproduced under a proper showing that the witness at the time of the trial was a resident of Louisiana and was not present at the trial. The state, in introducing his testimony, refused to introduce certain parts of the cross-examination, whereupon the defendant offered in evidence the following' statement, made by the witness on his cross-examination at the examining trial:

“I have been told that, if I would come up here and testify, it would help me down there.”

The court refused to permit the appellant to introduce this part of the witness’ cross-examination. The appellant offered it on the theory and for the purpose of affecting the credibility of the said witness Ogburn. The court was in error in excluding this testimony. See Branch’s P. C. pp. 83 and 84, and the authorities cited thereunder. In the very recent case of Arnold v. State, 272 S. W. 798, not yet [officially] reported, this question was decided in accordance with appellant’s contention.

It is well settled that the motive or animus that actuates a witness at the time of his testimony is never regarded as immaterial or collateral matter, and the adverse party has the right to prove any motive or declaration of a witness which will tend- to show his bias, interest, or prejudice, or any other mental Condition of the witness which in any manner tends to affect his credibility.

For the error of the court in excluding this testimony, it is our opinion that the judgment should be reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been es amined by the judges of the Court of Criminal Appeals and approved by the court. 
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