
    LONG v. STATE.
    (No. 8375.)
    (Court of Criminal Appeals of Texas.
    June 27, 1924.)
    1. Witnesses <®=p344(l) — Witness testifying for defendant held not to be discredited by showing his failure to testify on ‘trial of another defendant.
    State is not entitled to show, for purpose of discrediting witness giving testimony in support of defendant’s theory, failure of witness to testify at trial of another arrested for offense arising out of same transaction.
    2. Criminal law <§=419, 420(1) — Statement made in presence of sheriff but not in presence of accused held inadmissible as hearsay.
    Admission of statement which sheriff declared was made by a witness in his presence and not in presence of defendant giving an account of presence of witness at scene of arrest of defendant held erroneous as hearsay evidence.
    3. Witnesses <S=»388(2) — Evidencie of inconsistent statements inadmissible in absence of predicate.
    Testimony of sheriff as to statements made by defendant’s witness not in defendant’s presence, and therefore inadmissible as 'original testimony because hearsay, held improperly received, though statements inconsistent with testimony of witness at trial, no predicate having been laid.
    4. Criminal law <®=ol 169(1)— Admission of improper testimony held cause for reversal, in view of conflicting evidence and assessment of extreme penalty.
    Where there is direct conflict between prosecuting witness and accused, and where much testimony is introduced to discredit prosecuting witness, receipt of improper testimony on an important phase of case cannot be regarded as harmless error, in view of verdict assessing extreme punishment.
    Appeal from District Court, Howard County ; W. P. Leslie, Judge.
    H. O. Long was convicted of the unlawful possession of intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    Jno. B. Littler, of Big Springs, and B. W. Baker, of Carthage, for appellant.
    
      Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for a period of five years.

This is a companion case with that of R. W. Long, No. 8377, 262 S. W. 480, recently decided.

The state’s testimony is in substance this: Tie sheriff, his son, and a deputy, upon information received from the witness Blitch, went to a point near the Experiment Farm, where they found hidden in the underbrush two five-gallon jars of whisky. Near the whisky they took in custody R. W. Long, the brother of the appellant. Presently the appellant appeared upon the scene, riding in an automobile with Perry Long, the son of R. W. Long. Soon thereafter, the witness Blitch appeared, and, while in conversation with him, appellant was arrested. According to the state’s theory Blitch had previously made arrangements with the appellant to go to the point mentioned and purchase from him some whisky which the appellant claimed was there in custody of his brother, R. W. Long. Blitch was acting as a detective under the sheriff.

Appellant testified, and his theory, as developed from his testimony, is this: Blitch, whom appellant knew to be a dealer in whisky, in the conversation in Big Springs, had arranged to sell the appellant some whisky. In support of his theory appellant introduced the witness, Perry Long, whose testimony was in substance that he accepted the invitation of the appellant to ride in his automobile without knowledge of the location of the whisky, and on the way was told by appellant that he was.going after some whisky. On cross-examination Perry Long was required, over the objection of the appellant, to testify that he had been present at the trial of his father which had taken place a few days previous to that of the appellant, and that upon that trial he did not testify. Neither Perry Long nor the appellant was in control of the procedure in the trial of R. W. Long, and we fail to comprehend the reasoning by which the testimony mentioned would be available to the state as a discrediting fact against the testimony of the witness in behalf of the appellant. The case of Deneaner v. State, 58 Tex. Cr. R. 624, 127 S. W. 201, is apparently in point. Doubtless this alone would not suffice as a basis for the reversal of the judgment. It was followed, however, by the introduction, over the appellant’s objection, of a statement which the sheriff declared was made by the witness Perry Long' in( the presence of the sheriff and not in the presence of the appellant. In that statement the witness gave an account of his presence at the scene of the arrest of the appellant which is not consistent with his testimony upon the trial, in that it fails to make mention of the fact that the appellant had told the witness that he was going after some whisky. No predicate was laid for the introduction of this testimony. It was hearsay, and, so far as we are able to perceive, it came within none of the exceptions to the rule excluding that character of testimony. It was not usable as original testimony, and in the absence of a predicate was improperly received. Branch’s Ann. Tex. P. C. § 179, and authorities there collated.

There is direct conflict between the witness Blitch and the appellant; and much testimony was introduced to discredit the witness Blitch. Under these conditions, the receipt of the improper testimony upon an important phase of the case cannot be regarded as harmless error, in view of the verdict assessing the extreme punishment for the offense.

The judgment is reversed, and the cause remanded. 
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