
    GATEWOOD v. STATE.
    (No. 11309.)
    Court of Criminal Appeals of Texas.
    Jan. 4, 1928.
    1. Criminal law <@=»507'/2 — Rejecting testimony on objection, without proof that witness was charged with same offense as defendant, held error.
    Action of court in excluding material testimony of defendant’s witness, on state’s objection that witness was charged with same offense as defendant; held error, where state failed to establish truth of fact of like charge upon which the objection was based.
    2. Criminal law <®=>I 170(1) — Testimony that defendant was with witness and did not enter place where theft was committed held material and exclusion harmful.
    In prosecution for larceny of gasoline from pumphouse, testimony of witness that defendant was with him on night of alleged theft, but that neither of them went into pumphouse or took any gasoline therefrom, held material, and its exclusion harmful to defendant.
    Appeal from Grayson County Court; R. M. Carter, Judge.
    Jasper Gatewood was convicted -of theft, and be appeals.
    Reversed and remanded.
    B. W. Neagle, of Sherman, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for tbe State.
   HAWKINS, J.

Appellant was convicted for tbe theft of three gallons of gasoline valued at 60 cents, and bis punishment assessed at a fine of $10 and 40 days in jail.

Tbe gasoline was stolen from a pumphouse belonging to one Bern Everhart. Appellant offered as a witness Clessie Gate-wood; by whom be expected to prove- that witness was with appellant on tbe night of tbe theft and that neither appellant nor any other member of their party went into tbe pump-house in question or took any gasoline therefrom. Tbe state objected to said witness testifying, on tbe ground that he was charged with the same offense as that for which appellant was on trial. The reasons for the objection appear in the bill as grounds of objection only. There is no certificate of the fact that the witness was under a iegal charge for the same offense as appellant, and, if such was the fact, it is nowhere made to so appear in the record. The state seems to have rested on the objection urged without making proof to establish the truth of the facts upon which the objection was based. Under such circumstances, the action of the court in. not permitting the witness to testify was erroneous. Traylor v. State (Tex. Cr. App.) 23 S. W. 798; Day v. State, 27 Tex. App. 143, 11 S. W 36; Thomas v. State, 66 Tex. Cr. R. 326, 146 S. W. 878; Deatherage v. State, 91 Tex. Cr. R. 181, 237 S. W. 1111; West v. State, 98 Tex. Cr. R. 653, 267 S. W. 731. The expected evidence was material, and its exclusion hurtful to appellant.

The judgment is reversed, and the cause remanded.  