
    MELBURN v. STATE.
    (No. 10897.)
    Court of Criminal Appeals of Texas.
    May 11, 1927.
    1. Criminal law <&wkey;4l9, 420(10) — Testimony that “they said it was” defendant who broke into store held incompetent, as hearsay.
    In burglary trial, testimony of defendant’s character witness on cross-examination that he heard of some one breaking into store, and that “they said it was” defendant, held incompetent, as hearsay.
    2. Criminal law <§F’l 169(6) —Admission of hearsay testimony that defendant broke into store held reversible error, where penalty assessed was far above minimum.
    Admission of testimony in burglary trial that “they said” it was defendant who broke into store held reversible error, in view of fact that penalty assessed was far above minimum.
    3. Criminal law <&wkey;510 — Accomplice must be corroborated to sustain conviction (Code Cr. Proc. 1925, art. 718).
    Under Code Cr. Proc. 1925, art. 718, accomplice must be corroborated to sustain conviction.
    Appeal from District Court, Damar County; George P. Blackburn, Judge.
    Charley Melburn was convicted of burglary, and he appeals.
    Reversed and remanded.
    W. A. Hutchison, of Paris, for appellant.
    8am D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s. Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of 6 years.

The accomplice Hale testified that he and four other persons went in an automobile to a point -about a mile from the store of Wheeler; that the appellant and Woods left the car and returned with some property, including some overalls, which were divided among the members of the party. Wheeler testified to the breaking of his store and to the theft of a number of articles, including bolts of checks, overalls, ginghams, and shoes. The witness testified that about the premises he saw the tracks of four persons. However, he was not able to identify the tracks as those of- the appellant. He also saw the tracks of an automobile.

The sheriff testified that there had been a shower of rain on the night on which the burglary took place; that on the following morning he examined the premises and found tracks of a Ford automobile; he afterwards found the ear and some of the stolen goods in it; that he later made efforts to find the appellant; he went to. various places endeavoring to locate him. He also testified to the finding of some of the stolen articles in Hale’s car.

Appellant introduced no evidence, save that of one witness, 67 years of age, who testified that the appellant had never been convicted of a felony. On cross-examination he was asked the following question:

“You heard about him breaking into Wash Wheeler’s store and leaving the county after that, didn’t you, and being gone 2 or 3 years?”

The defendant’s objection was overruled, and the witness answered:

“Yes; I heard of some one breaking into the store and that is who they said -it was.”

This was not competent to prove the offense. It was hearsay. State’s counsel before this court concedes that its receipt was error, and in this we concur, especially in view of the fact that the penalty assessed was far above the minimum. We will add that we fail to find any testimony corroborative' of the accomplice Hale. To sustain the conviction the law requires corroboration. Article 718, C. C. P. 1925.

The judgment is reversed, - and the cause remanded.  