
    MORGAN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 26, 1911.)
    1. Larceny (§ 50) — Evidence—Admissibility.
    Where, on the trial of a porter in a store for the theft of a skirt, the state proved that accused had a skirt in his possession in the store, but did not prove that he had been in possession of other goods, evidence of goods found in the house of a third person with whom accused spent a part of his time was inadmissible.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    2. LARCENY (§ 70)— INSTRUCTIONS — EVIDENCE.
    A charge, on a trial for the theft of a skirt from a store, as to other thefts of goods found at the home of a third person with whom accused spent a part of his time was erroneous, in the absence of evidence connecting accused with such thefts.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 185; Dec. Dig. § 70.]
    3. Criminal Law (§ 452) — Evidence—Hearsay Evidence.
    A witness may not testify as to his opinion about matters of which he has no actual knowledge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1053; Dec. Dig. § 452.]
    4. Criminal Law (§ 417) — Evidence—Hearsay Evidence.
    On a trial for theft, opinions of witnesses, expressed on finding goods in the home of a third person in the absence of accused, were not binding on him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    5. Criminal Law (§ 721) — Misconduct of Prosecuting Attorney — Reverence to Failure of Accused to Testify.
    The statement of the assistant county attorney, in the presence of the jury, that he could not prove a fact because accused did not testify, made in interpreting the argument of counsel for accused, is reversible error as alluding to accused’s failure to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dee. Dig. § 721.]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    Arthur Morgan was convicted of theft, and he appeals.
    Reversed and remanded.
    Crawford, Muse & Allen and Lewis T. Carpenter, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   DAVIDSON, P. J.

Appellant was charged with the theft of one skirt of the value of $15. The trial resulted in conviction; the punishment being assessed at six months’ imprisonment in the county jail, and a fine of $25.

The state proved by the witness Booker that he and appellant were employes of the Titche-Goettinger Company, the witness being employed to run the elevator, and appellant porter on the second floor. On the morning of the 8th of September, while dusting out his elevator, he saw appellant take a black skirt and carry it into the toilet. This is the only time appellant was ever seen in possession of goods taken from .his alleged employers. Booker did not know what became of the skirt, or that it was ever taken from the house. The latter part of December, or, as the witness states, just before Christmas, the house of Emma Anderson was investigated and quite a lot of goods found in her possession, among others, a black skirt. It had some mark on it indicating it had at one time been in the possession of the Titche-Goettinger Company. There were some other things, amounting, as one of the witnesses state, to a few hundred dollars, found in Emma Anderson’s house. No witness undertook to put appellant in possession of these goods. The state showed that appellant spent part of his time with this woman, and evidence was introduced' to indicate or establish the fact that he was keeping the woman as his mistress. He was seen there on divers occasions. The witness Duncan, a policeman, testified that appellant had two homes, one his residence on Flora street, and the other with the woman Emma Anderson. But when brought down squarely on the facts his evidence was matter of opinion and hearsay. The witness Booker testified that appellant stayed with the woman, Emma Anderson, at least he had seen him there on divers occasions. He also testified that appellant’s home was on Mora street. Booker was first arrested for the theft of these goods and the officers took him to Emma Anderson’s residence, and from the evidence, it would, seem in search of the missing skirt. Booker also testified that appellant told him he was going to steal some goods. Emma Anderson did not testify in the case. No explanation is given in the record why she was not placed upon the stand as a witness. The witness Booker testified he was at Emma Anderson’s house quite often himself. Appellant did not testify. It may be more than questionable, and seriously so, that the evidence makes a case against appellant. Omitting Booker’s testimony, there is not a fact in the case that we have been able to discover that connects appellant with the theft; and that is found in the statement of Booker that he saw appellant, take a skirt from a pile of skirts one morning and carry' it into the toilet. There is no " evidence offered or suggested that the skirt found at Emma Anderson’s was the skirt that appellant had in his possession that morning unless it be found in the fact there was some mark about the skirt which indicated that it may have been once the property of Titche-Goettinger Company; but there is no evidence in the record attempt-' ing to show that the skirt found at Emma Anderson’s was the skirt appellant had in the building. Nor is there any evidence in the record that we have been able to discover to show appellant ever had possession of any of the other goods that were found at Emma Anderson’s.

1. Exception was reserved by appellant to the introduction of evidence in regard to the goods and thing's found at Emma Anderson’s house. We do not care to review the various grounds of objection. As this record presents the matter, we are of opinion that these matters were not admissible and this becomes the more important by reason of the fact the court instructed the jury with reference to other thefts, on the theory, it is presumed, that appellant was engaged in systematic stealing from his employers.

2. Exception was reserved to this charge, also, on several grounds. It may be sufficient, in holding this charge reversible en;or, to state that appellant was not in any wise connected with the goods with reference to which the charge was given, and the court in giving the charge necessarily assumed the fact that appellant had had the goods in his possession. Emma Anderson’s possession of the goods was not possession of appellant, and, unless in some manner they could connect appellant with the goods found at Elmma Anderson’s house, the testimony was clearly inadmissible, and the charge was equally clearly erroneous.

3. The policeman, Duncan, was permitted to testify at considerable length with reference to his opinion about the matters. Among other things, in substance, he states appellant took these goods and carried them to Emma Anderson’s house. He says he is bound to have carried them there. There is quite a lot of this testimony introduced from this witness, over appellant’s objection, that ought not to have gone into the record. They are matters about which Duncan knew nothing, and was only expressing his belief or opinion about things, and about which he admitted that he really did not know anything. This was error.

4. The remarks with reference to Duncan’s testimony, we think, equally apply to some of the testimony of the witness Gahn, with reference to the goods that he says he assisted in finding at the residence of Emma Anderson. He was with Booker and Duncan when they went to the residence of the woman Anderson. We deem it unnecessary to give a detailed statement of the testimony of these witnesses. It was hearsay and opinion evidence about matters occurring in the absence of defendant, and opinions based on finding the goods at Emma Anderson’s house, and all these matters occurred in the absence of appellant, and, of course, are in no way binding upon him. They were matters occurring between third parties.

5. Another bill of exception recites that Duncan testified on cross-examination that he had never known of any other instance in which defendant was charged with violating the law; and it is further stated in the bill that appellant did not take the witness stand in his own behalf, and that during the argument of the case appellant’s counsel, R. B. Allen, directed the attention of the jury to the fact that he had asked the state’s witness, Duncan, the detective, whether or not he had ever heard of the defendant being charged with any violation of the law outside of the transaction for which he was on trial, and Duncan answered that he had not. Defendant’s counsel then said to the jury that if the defendant had not had a clean record he would not have dared to ask the state’s witness this question, because the assistant county attorney, Mr. McCutcheon, could have then proved against the defendant any violation of the law on his part, if there was any, and his arrest for said offenses; and thereupon the assistant county attorney, in the presence and hearing of the jury, interrupted counsel for the defendant in his argument, and said, “I could not have proven' anything of that kind against him, because the defendant did not testify as a witness in his own behalf.” Objection was immediately interposed that it was an allusion to appellant’s failure to testify in his own behalf, which is prohibited by the statute. This was error. Appellant had not testified in his own behalf, and this was a direct allusion to such failure to testify. Under all of our authorities and under the statute itself this constitutes grounds for reversal.

For the errors indicated, the judgment is reversed, and the cause is remanded.  