Gatewood v. State (1 S.W.2d 625, 1928)

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.