
    McABEE v. STATE.
    (No. 8645.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.)
    I. Criminal law <&wkey;4!9, 420(10) — Admission of, hearsay testimony that defendant had paid fare of prosecutrix held error.
    In prosecution for contributing to delinquency of female infant, where defendant was running a stage line, and only evidence of his connection with the transaction was that he conveyed prosecutrix and Mrs. B. from prose-cutrix’s home town to place where he met a stage and exchanged- passengers, there being no suggestion of conspiracy between defendant and Mrs. B., testimony of prosecutrix that Mrs. B. told her, not in" presence of defendant, that defendant had given her money to pay prose-cutrix’s fare, was hearsay, and its admission erroneous.
    2. Infants <&wkey;20 — Evidence held not to sustain conviction of contributing to delinquency of female infant.
    In prosecution for contributing to- delinquency of female infant, held that evidence was insufficient to sustain conviction.
    <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from Howard County Court; H. R. Debenport, Judge.
    G. W. McAbee was convicted of contributing to delinquency of female infant, and appeals.
    Reversed and remanded.
    Jno. B. Littler, of Eastland, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the county court of Howard county on two counts in an information, one count charging him with contributing to the delinquency of a female under the age of 17 years by causing and encouraging her to commit acts of sexual intercourse with men, and the other count on which he was convicted charging him with enticing a minor girl child away from the custody of her parents. On the first count his punishment was assessed at six months in jail and a fine of $250, and on the other count his punishment was assessed at a fine of $100.

The record shows that one Velma Barnes carried the child in question from her home in Big Spring to Sweetwater, Abilene, and other places for immoral purposes. Appellant was running the Red Ball stage line from Big Spring to near Roscoe, where he met the Sweetwater stage and exchanged passengers. The only connection he is shown to have with the transaction is that he hauled Mrs. Barnes and the girl in question from Big Spring to where he met the Sweetwater stage, and then exchanged them with the driver of that car for other passengers. The girl in question testified that Mrs. Barnes told hér (not in appellant’s presence or hearing) after they got to Sweetwater that appellant had given her $4.50 to pay for the girl’s fare. Proper objection was made to this as hearsay, and exception was duly preserved in the record.

This objection ought to have been sustained, and the court’s failure to do so was error. Without this testimony, there is not a vestige of incriminating testimony against; this appellant in the record. On the con-trary, the state’s own testimony shows,that the girl was a volunteer passenger on the stage line in company with Mrs. Barnes, and there is no suggestion in the record of any conspiracy or agreement between appellant and Mrs. Barnes to act together in the matter.

Because of the court’s error in admitting the hearsay testimony, and because the facts are wholly insufficient to support the verdict and judgment, it is our opinion that the judgment should he reversed and the cause remanded-.

PER OURIAM. 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.  