
    DUPLICHAN v. STATE.
    (No. 9374.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1925.)
    1. Criminal law <@=>1036(1) — Testimony allowed to go in without objection not available on appeal as ground for reversal.
    Testimony which is allowed to go in without objection is not available on appeal to appellant as ground for reversal.
    2. Infants <@=>20 — Proof that defendant loitered and associated with lewd woman held inadmissible, when such conduct was not in issue.
    In prosecution for contributing to delinquency of a minor, with charge that defendant permitted him to loiter around and assist in manufacture and sale of intoxicating liquors, proof that defendant loitered around and associated with a lewd woman was inadmissible, as having no bearing on charge for which defendant was being tried.
    3. Infants <@=>20 — Proof that defendant’s caliber was that of a bootlegger, and that he did not work and associated with immoral characters, held inadmissible, when . such conduct was not in issue.
    In prosecution for contributing to delinquency of a minor, with charge that defendant permitted- minor to loiter around and assist in manufacture and sale of intoxicating liquor, proof that defendant’s caliber was that of a bootlegger, and that he lolled on the street, and did not work, and associated with immoral characters, and everything bad, held inadmissible, when such conduct was not in issue.
    Commissioners’ Decision.
    Appeal from Jefferson County Court at Law; C. N. Ellis, Judge.
    Lebes Duplichan was convicted of contributing to the delinquency of a minor, and he appeals.
    Reversed and remanded.
    Rose & Johnson, of Port Arthur, for appellant.
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   JERRY, J.

The appellant was convicted in the county court of Jefferson for the offense of contributing to the delinquency of a minor, and his punishment assessed at a fine of $100. The information charged Ledell Duplichan and Lebes Duplichan with unlawfully causing, encouraging, and contributing to the delinquency of O. Duplichan, a delinquent child, by allowing and encouraging and permitting the said O. Duplichan to loiter in and around and assist in the manufacture and sale of intoxicating liquor.

The record discloses that O. Duplichan is a minor boy under 16 years of age, and the brother of the appellant, Lebes Duplichan. The appellant, Lebes Duplichan, was jointly tried with Ledell Duplichan, and the jury acquitted Ledell Duplichan and convicted this appellant. The record discloses the fact that the witness Baker was the chief witness for the state. It also discloses that this witness’ testimony was based almost entirely upon hearsay and upon his conclusions; and there is very-little of it contained in the record which if properly objected to would have been admissible. The record shows, however, that a great deal of it was allowed to go in without objection, and, of course, that portion of it is not available to this appellant on appeal. The record does disclose, however, that proper objection was made by appellant’s counsel to the following testimony of - said witness Baker:

“Lebes Duplichan’s caliber is a bootlegger: he lolls on the street and does not work, and associates with immoral characters, and everything bad. 0. Duplichan assists him and aids and abets him'in that. He drives a car with the .woman they bed up with, and other things, violations of the law. He has done it a number of different times. .1 cannot recall the dates. I saw him with the same woman in the marsh making whisky and laying in bed with, and associating with, in selling whisky. That was a month ago; any time during the week you want to see them. That was in the city of Port Arthur; he was laying up at 830 Austin avenue. I arrested him, and filed a complaint against him for that offense, and he paid a fine. -That matter has been satisfied. O. Duplichan was driving the car I mentioned up and down Houston avenue in the negro quarters, and most any place you can see them; different places;.different times. Sometimes he was by himself, sometimes with his brother, and sometimes this woman, and different ones different times. I cannot remember the woman’s name. I saw the kid with her one time, I know.”

This testimony was properly objected to as being the opinion and conclusion of the witness, and being based upon supposition and hearsay, and because it was highly prejudicial to the defendant, and because there was no allegation in the pleadings charging him with the offense of associating with prostitutes or lewd women. Various other objections were made to-its-introduction. This. testimony was not admissible. The appellant was charged with the direct and specific offense of permitting the said C. Duplichan to loiter around and assist in’ the manufacture and sale of intoxicating liquor, and proof that he loitered around and associated with a lewd woman had no bearing on the charge for which he was being tried. Neither was it admissible for the state to show by this witness that this appellant’s caliber is that of a bootlegger, and it was certainly in violation of all the rules of evidence known to this court to permit the state to prove that the appellant “lolls on the streets, and does not work, and associates with immoral characters and everything bad,” when this character of conduct was not an issue under either the charge or the evidence. Wilmering v. State (Tex. Cr. App.) 272 S. W. 473.

We deem it pertinent to suggest that, upon another trial of this case, the testimony be confined toward developing the offense charged in the information, and that the witness Baker, as well as the other witnesses in the case, be precluded from stating as facts matters that are clearly hearsay, or that aré conclusions drawn by the witnesses based upon hearsay. If this witness, or the other witnesses, know that this appellant was engaged in the manufacture of liquor, and that he was allowing his minor brother to assist him in this unlawful occupation, then it is pertinent for them to so testify, but mere conclusions to the effect that this appellant was so engaged should not be admitted.

Because the court erred in admitting the testimony above set out, - 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 examined by the judges of the Court of Criminal Appeals and approved by the court. 
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