The opinion
on appellant’s motion for rehearing.
DAVIDSON, Judge.
In view of all the facts and circumstances before us, we have, upon further consideration, concluded that the affidavit of the four jurors is sufficient to constitute the necessary affidavit to establish a bystanders’ bill of exception.
As to matters occurring in the presence of the jury during the trial of the case, members of the jury may occupy the position of bystanders and furnish the necessary affidavit to establish a bystanders’ bill of exception. Alamo Iron Works v. Prado, 220 S. W. 282 .
The State did not controvert by affidavit the bystanders’ bill of exception as established by the affidavit of the four jurors.
It follows that the bystanders’ bill is properly before us for consideration and that we erred in reaching a contrary conclusion upon original submission.
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The bystanders’ bill of exception shows that the witness Bailey was, over appellant’s objection, permitted to testify that Smith, the alleged purchaser of the whisky, told him that he had purchased the whiskey from the appellant.
This testimony was hearsay. There is nothing in the record suggesting that it was admissible as an exception to the hearsay rule.
The State’s witness Smith having testified that he purchased the pint of whisky from appellant and appellant having denied that fact, the hearsay testimony tended to support the State’s witness upon a material issue and was therefore error of such a nature as to require a reversal of the conviction.
Accordingly, appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.