
    SIMS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Larceny (§ 52) — Evidence—Admissibility.
    Where, in a prosecution for horse theft, the state, as a circumstance tending to prove the theft, introduced evidence showing that defendant sold the horse at less than its real market value, it was error to refuse to permit defendant to show by the purchaser that, at the time of the sale, he gave as his reason for selling that he was out of feed and wanted to buy feed for his other stock.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 187, 147; Dec. Dig. § 52.]
    2. Criminal Law (§ 414) — Evidence—Admissibility.
    Where, in a prosecution for horse theft, the state introduced the person to whom defendant had sold the horse, who testified as to. a part of the conversation with defendant at the time of the sale, it was error to refuse to. permit defendant to show the rest of the conversation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 936; Dec. Dig. § 414.]
    3. Cbiminai Law (§ 417) — Evidence—Heak-say.
    In a prosecution for horse theft, the court properly refused to permit witnesses to testify as to conversations they had had with the person from whom defendant claimed to have gotten the horse, since, not occurring in the presence of defendant, it was hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]'
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Minet Sims was convicted of horse theft, and he appeals.
    Reversed and remanded.
    Harry Tom King, of Galveston, and Cunningham & Sewell, of Abilene, 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
    
   PRENDERGAST, P. J.

From a conviction for horse theft, with the lowest penalty assessed, appellant prosecutes this appeal.

The evidence, as shown by this record, is amply sufficient to sustain the verdict. As the case must be reversed, however, we do-not discuss the evidence.

As one circumstance tending to show that the horse sold by appellant to C. E. Jacobs was stolen, the state introduced evidence showing that he sold the horse to Jacobs at less than its reasonable market value. The state introduced Jacobs, who testified, among other things, that, before noon' on the day he bought the horse, appellant came to him, told him about the horse and his wanting to sell it, and he agreed at that time to go by where appellant had the horse that day and see the horse and see if he could trade for him; that later in the same day he did go by where appellant had 'the horse, saw him, and at that time bought the horse, which appellant then and there' delivered to him, and he took it on home with him; that he did not then pay appellant for the horse, but as agreed between them, because he did not have his checkbook with him, appellant would come to his (the witness’) house the next day and get the check in pay for the horse, which was done. By one of appellant’s bills he shows that in one or the other of these first interviews, the witness could not be certain which, appellant gave as a reason for taking the price he did for the horse that he was out of feed and wanted to get the money to buy feed for his other stock. This evidence was admissible. The state had brought out a part of the conversation in the negotiations by appellant with the witness, and the appellant was entitled, under the statute, to all of the conversation or negotiations on the subject. As the state had proved as a part of its case that appellant sold the horse to the witness at less than it was worth, the appellant had the right to show that, at the time he made the sale or was negotiating with the witness, to effect the sale, he explained the reason why he was taking less than the reasonable market value of the horse. The court, it seems, as shown by the bill, concluded, from all the testimony heárd in the absence of the jury at the time, that this statement by appellant to the witness Jacobs of why he was taking less than the horse was worth did not occur until after the consummation of the sale and until the next day, when the appellant went to the witness to get the check in pay for the horse. Upon a careful examination of the bill, we think the court was clearly in error in his conclusion as to the time when this statement was made by appellant. The bill shows that it was made at one or the other of the conversations or negotiations between appellant and the witness as to the sale of the horse and did not occur next day, when the appellant went to the witness and got the check. If, as a matter of fact, the conversation had not occurred at or before the sale ■of the horse and had not occurred until the next day when appellant went to get the check, the evidence would not have been admissible. But clearly we think' from the bill the conversation and statement by the appellant to the witness Jacobs did not occur when he went to get the check but at one or the other interviews and was admissible. Por this error this case must be.reversed.

Appellant has two other bills of exceptions. By one it is shown that he offered to prove by his witness J. E. Hallmark that, at some subsequent day after the consummation of the sale to Jacobs of the said stolen horse, Trav Harmon, from whom appellant claimed to have gotten the horse in a trade, told the witness that he had swapped said stolen horse to appellant and how he (Harmon) had heard the horse was his; that he had lost a mare some 12 years before, and that Mr. Hale told him he had found her and she had four colts and that this was one of her colts. In another bill appellant sought to prove by A. P. McWilliams that some time between January 1 and 15, 1913, said Harmon had talked with the witness about pasturing some stock in his (the witness’) pasture, and in the conversation he told this witness he had found the mare he had lost several years ago and she had raised four colts, and he wanted to get pasture for them, and in the conversation he told the witness who told him about the horse being his (Harmon’s). The record shows that said Harmon claimed that some 12 years, more or less, before January, 1913, he had lost a mare and had not seen or heard anything about her until this time, when he was told by some person, as claimed by him, that this old mare was in a certain pasture and had four colts, and that the alleged stolen horse in this case was one of those colts. It is also shown that said Harmon was also under indictment at the time of this trial for the theft of the said horse; that neither of these conversations of the respective witnesses with said Harmon was in the presence or hearing of the appellant. The court, upon the objection of the state to this tendered evidence, sustained the objection and would not permit the witness to testify to these conversations with Harmon. This testimony was inadmissible, and the court correctly excluded it. Harmon himself could not testify in this case. Neither could his hearsay testimony be introduced. This offered testimony was clearly hearsay. The court had correctly permitted the appellant to prove by other witnesses the same character of testimony which occurred in the presence and hearing of the appellant. This was permissible, but the testimony tendered was not permissible.

For the error above pointed out, the judgment is reversed, and the cause remanded.  