J. G. Fuller v. The State, 19 Tex. Ct. App. 380

Willsor, Judge. I. Appellant suggests a diminution of the record in this case, and asks for a certiorari to bring up a more perfect record. The diminution suggested is that the record does not show the impaneling of the grand jury that returned the indictment into court. We must refuse to grant the motion for the certiorari. In making up a transcript in a criminal cause on appeal, the record of the organization of the grand jury does not constitute a portion of the record in the case essential or proper to be included in the transcript.

It is not a proceeding in the cause to be brought before this court on appeal, and hence it would not be proper to order it to be brought up by certiorari. (Dist. Court Bules, Eos. 110, 111, 112, 113; 2 Texas Ct. App., 678.) • II. On the trial of the case, the State was permitted, over the objections of the defendant, and to which ruling of the court there is a proper bill of exception, to prove that John C. Sparks and Joe Tickle, both of whom were dead, went to the pasture of T. C.

Sparks and there saw and identified the yearling in controversy, and picked it out from among some three hundred other yearlings in the pasture, saying it was the identical yearling which Mrs. A. Tickle had sold to John C. Sparks, acting as- the agent for T. C. Sparks. This testimony was important and material, the principal issue in the case being the identity of the yearling so sold by Mrs.

Tickle to Sparks, with a yearling sold by the defendant to said Sparks, it being testified to by other witnesses that said yearling was the identical one which defendant, through one Latch Dew, had sold and delivered to said Sparks. It directly connected the' defendant with the theft of Mrs. Tickle’s yearling. We are clearly of the opinion that this testimony was hearsay and inadmissible against the defendant for any purpose. (Anderson v. The State, 14 Texas Ct. App., 49.) III.

There was evidence, we think, which tended to show that the State’s witness Latch Dew was an. accomplice in the theft of the yearling, if a theft had in fact been committed. Such being the case the court should have properly instructed the jury as to the law governing the testimony of an accomplice.

Such instruction was not given the jury, although defendant’s counsel requested a special charge upon the subject, which, while the court may have been justified in refusing to give it, because incorrectly drawn, was nevertheless sufficient to call the attention of the court to the issue and to the omission to present it in the general charge. Because of the errors above noticed the judgment is reversed and the cause is remanded. Reversed and remanded. [Opinion delivered November 18, 1885.]