
    BRADSHAW v. STATE.
    (Court of Criminal Appeals of Texas.
    March 19, 1913.)
    1. Cmminai. Law (§§ 419, 420) — Evidence-Hearsay — Declarations of Third Persons.
    That a person was in Europe did not justify evidence of his statements to another witness not made in accused’s presence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    2. Criminal Law (§§ 419, 420) — Evidence-Hearsay — Declarations of Third Persons.
    On a trial for burglary, testimony that, after the witness obtained possession of certain cigars, he sent for R., who identified them as the cigars stolen, this not occurring in accused’s presence, was inadmissible, although R. had testified that they were the cigars stolen.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    
      3. Criminal Taw (§ 418)—Evidence—Hear-say—Declarations by Third Persons.
    On a trial for burglary, the confession of a third person made in accused’s presence-while accused and the third person were both under arrest was incompetent.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 968-972; Dec. Dig. § 418.]
    4. Criminal Law (§ 656)—Trial—Remarks oe Court.
    After a witness had testified that a third person made a confession while he and accused were both under arrest, and that accused interrupted, and asked him what he was getting from the police department for the information, the court, in the presence and hearing of the jury, gave an opinion which he ordered incorporated in the record reciting the offer of such evidence; and holding that by his remark accused joined in the confession, and that the testimony would be admitted. Held, that the delivery of this opinion to the jury or in its presence and hearing was improper.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.] •
    5. Criminal Daw (§ 412)—Evidence—Ad-missibility.
    On a trial for burglary, evidence that while a third person in accused’s presence, both he and accused being under arrest, was making a confession, accused interrupted and asked him what he was getting from the police department for his information, was inadmissible.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 894-917, 919-935; Dec. Dig. § 412.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    H. Bradshaw was convicted of burglary, and he appeals.
    Reversed and remanded.
    Thos. C. Turnley, of Galveston, Tiernan & Tiernan, of Houston, and Geo. G. Clough, of Galveston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER-'in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series St. Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at seven years’ confinement in the penitentiary.

The first bill of exceptions recites that Celli told the witness John Day that he had given Mr. Petropol the stolen cigars to sell. These cigars he testifies he located at Pet-ropol’s, and asked Petropol where he got them. The court says he allowed this because -it had been previously shown that N. Celli was in Europe at the time of the trial, and the witness Petropol testified he got the cigars from Celli. This was error. The fact that the absent witness was in Europe afforded no reason why conversations he had with another party should be used against the defendant. The bill recites that defendant was not present, and knew nothing of it.

Another bill recites that the witness John Day, while testifying for the state, was permitted to tell the jury that he had Mr. Romano to identify the cigars in question as those that were stolen. The bill further recites that the defendant was not present, but, on the contrary, shows that he was absent. Several objections were urged to this. The witness testified that, after he got possession of the cigars, he carried them to the police station, and sent for Mr. Romano, and had the cigars identified by Mr. Romano. The court says he permitted this testimony to go to the jury because the witness Romano had already stated these were the cigars stolen. That would bring in review the testimony with reference to what the judge certifies; but, be that as it may, what occurred, between third parties in the absence of the defendant would not be binding upon him,. and upon another trial this matter should not be permitted to occur.

Another bill recites that the witness Day was permitted to testify that he had a conversation with Leonard in the presence of the defendant at the police station; that Leonard and appellant were both under arrest at the time and in custody of the officer who was testifying. There were various objections urged to what occurred at the police station while the defendant was under arrest as having occurred between Day and Leonard, in which Leonard made a confession. Appellant was in no way bound by the confession of Leonard, although it was made in his, defendant’s, presence; he was under arrest, and was not bound by the statements of other prisoners. It is unnecessary to go into any detailed discussion of that matter.

Another bill recites that while the same witness Day was testifying he was permitted to state that he asked Leonard if appellant was the man who sent him for the automobile, and Leonard said he was, and appellant then spoke up and said to Leonard: “ ‘What are you getting for this information, you God damn son of a bitch?’ Leonard told me the property I was looking for was at Celli’s store, and, when Leonard told me where the property was, the.defendant Bradshaw said to him or asked him what he was getting from the police department for giving that information.” The court, passing upon the objections made by counsel for the defendant as to the admissibility of this evidence, in the presence and hearing of the jury, gave the following opinion thereon, and ordered the official stenographer to incorporate the same in the official record, to wit: “In this case the state offers certain testimony by Officer John Day relating to statements made by the defendant, and one Louis Leonard, for the purpose of showing a confession, made by Louis Leonard, who was under arrest at the same time as the defendant at the bar—both defendants being under arrest at the time—for the offense for which the defendant is now on trial, Officer John Day being present when the statement was made by Leonard, in the presence of the defendant, after he, Leonard, had been warned by the officer that he need not make any statement, but, if he did so, it would be used against him on his trial for the offense charged, and that at the time Leonard made the statement to the officer, in the presence of the defendant at the bar, as to where certain goods would be found, that the defendant said to him, ‘You God damn son of a bitch, what are you getting from the police department for this information?’ This declaration, the court holds, is in effect a joining in or admission on the part of the defendant at the bar of the confession made by Leonard at that time. The testimony will be admitted.” This ends the quotation of the court’s opinion of which complaint is made. The court should not have delivered this opinion to the jury, or in the presence and hearing of the jury. The evidence in regard to these matters was clearly inadmissible, which was also error. Appellant was under arrest, and the warning to Leonard was not a warning to defendant, and whatever remark he may have made while under arrest could not have been used against appellant.

It is unnecessary to detail the evidence in the case. The errors above indicated are clearly reversible, and the judgment is therefore reversed, and the cause is remanded.  