
    WOOLLY v. STATE.
    (No. 7078.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1923.)
    1. Criminal law &wkey;419, 420(10) — Testimony by officer of complaints held hearsay.
    In a prosecution for adultery, testimony by a peace officer in regard to conduct of accused that “I had numerous complaints. The neighbors complained about him coming out there and' staying so much, and his conduct was so bad they wanted him arrested,” was hearsay.
    2. Criminal law &wkey;723 (3) — Argument of counsel-that people of town desired conviction held error.
    It was proper for prosecutor to insist on conviction because, in his judgment, the evidence warranted it; but, when he urged as a ground that “the people of” the town “desire it,” he was placing before the jury a “fact not properly for their consideration.
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    J. A. Woolly was convicted of adultery, and he appeals.
    Reversed and remanded.
    Reasonover & Reasonover, of Denison, for appellant.
    R. G. Storey, Asst Atty. Gen., for the State.
   HAWKINS, J.

Appellant is convicted for adultery with one Nettie Collins with punishment assessed at a fine of $500.

The state relied upon circumstantial evidence to. secure a conviction. The proof showed that appellant was engaged in the mercantile business; was a married man with a wife and two children. He and his family lived over the store. Nettie Collins lived in a house on the outskirts of the city of Denison. Appellant had been seen on numerous occasions to go there both in the daytime and at night, and had been seen taking in the house things which the witnesses thought to be groceries and other household supplies. He was seen to leave the place frequently early in the morning. His automobile would be parked at the house both daytime and night, but in the daytime usually at the back of the house. We do not regard it necessary to make a more extended statement of the facts. The state used a peace officer as a witness and, among other things, propounded to him the following question:

“Did you ever receive any complaint from the neighbors out there in reference to Woolly’s and Mrs. Collins’ conduct out there ? ”

Objection was interposed, but was overruled, and the witness answered:

“Yes, sir; I had numerous complaints. The neighbors complained about him coming out there and staying there so much, and his conduct was so bad they wanted him arrested.”

It is not clear to us why the state should have insisted on the court admitting this character of testimony. It is clearly violative of the rules excluding hearsay. The neighbors should have been called to testify under oath and not relate through an officer what their complaints' were. The evidence was not only inadmissible, but must be held to have been harmful. Counsel representing the state not only insisted over objection in placing this hearsay evidence in the record, but followed it up by an argument to the effect that the jury ought to convict appellant because the “evidence warrants it, and because the people of Denison desire it.” A written charge was requested instructing the jury to disregard the argument, but was refused by the court. It was certainly proper for counsel to insist upon the conviction of appellant on the ground that the evidence, in his judgment, authorized it; but, when he departed from the record and insisted that the people -of Denison desired such conviction he was placing before the jury a fact not in evidence, one which, if true, ought not to be considered by the jury in determining the guilt of a party on trial.

For the errors pointed out, the judgment must be reversed, and the cause remanded.  