
    HOWARD v. STATE.
    (No. 3459.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    Criminal Daw <§=>419, 420 — Evidence — Hearsay.
    In a prosecution for assault and battery, testimony of witnesses as to statements made to them relative to the assault, by the person alleged to have been assaulted, being hearsay, should have been excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <§=> 419, 420.]
    Appeal from Newton County Court; W. E. Gray, Judge.
    W. W. Howard was convicted of aggravated assault and battery, and appeals.
    Reversed and remanded.
    Forse & Hamilton, of Newton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The information and complaint charge appellant, who was then and there an adult male, did commit an aggravated assault and battery in and upon the person of Carrie Howard, who was a female. The evidence shows they sustained the relation of husband and wife. She did not testify in the ease. There was no testimony introduced of a positive nature that appellant made any assault upon his wife. There are some circumstances from which it might be deduced that about half after 1 or 2 o’clock in the evening the voice of a female, supposed to be appellant’s wife, was heard at his residence. She was screaming or making a noise. It was shown that subsequently she had some bruises on her person. Witnesses were permitted to testify to statements which they said Mrs. Howard made to them, indicating that he had caught her by the hair and jerked her down. Two or three of these witnesses were permitted to testify to statements made by Mrs. Howard to. them, which would indicate that appellant 'had assaulted her. This testimony should have been excluded on the objection of appellant. Bills of exception were reserved on various grounds. These rulings of the court necessitate a reversal of the judgment. The testimony was purely hearsay. This is so obviously so, it is unnecessary to cite authority. Without these hearsay statements of the alleged assaulted party, the state does not show, except as above stated in this opinion, that there was any assault made. The court in his charge gave all the definitions of assault, among others, the use of a deadly weapon, etc. There was no evidence in the case that any deadly weapon was used, nor any intimation even from the hearsay statements. These bills, with reference to the hearsay statements of Mrs. Howard as to what the defendant did to her, show they were made in his absence and over his objection. It is deemed unnecessary to go into a discussion of these matters. Such hearsay statements are not admissible, and should have been excluded.

The judgment is reversed, and the cause remanded.  