¶1delivered the opinion, of the court.
¶2It was fatal error to admit the statements said to have been made by appellant’s mother out of the appellant’s presence to Weeks, one of the searching party, to the effect that defendant came to her house about one o’clock on the night in question. We are not'prepared to say that it is affirmatively shown with the clearness required in criminal cases that this statement was *666heard by the appellant. We do not think this can be safely affirmed on this record; wherefore the error is fatal.
¶3It is to be specially noted that the appellant did not himself state at what time he came home, and time was the one vital thing involved. We decide no other error assigned at this time.
¶4Reversed and remanded.