Burton v. State

We cannbt doubt that the court below erred in admitting the statement or declaration made by Miller to the sheriff, that the defendant and one White had put the knife and steel in the jail. Declarations or statements made by a party, when they form part of the ros f/cstao of the transaction involved, having a tendency to elucidate it, made Avith*111out premeditation or artifice, and without regard to consequences, are admissible — they are regarded as parts of the transaction. But such declarations are not admissible if they'are merely narrative of past occurrences. — 1 Green. Ev., § 110; Whart. Cr. Ev., § 264. If at the time this statement or declaration was made, the defendant had made any declaration or statement, not criminating himself, in reference to putting the knife and steel into the jail, it would not be suggested that such statement or declaration formed part of the res gestae and was admissible evidence. The declaration of Miller was but a mere assertion of the guilt of the defendant, unverified, made in his absence when he had not the opportunity of contradiction, and is hearsay in its most objectionable form. The res gestae here involved, ivas the introduction of the knife and steel into the jail, to aid Blocker in escaping; that ivas the act constituting the offense charged in the indictment; the uses to which they were applied after introduction, formed no part of the res gestae or transaction.

In the refusal of the instructions requested by the defendant there was no error; they were mere repetitions of instructions which had been previously given at his instance.

For the error pointed out, the judgment must be reversed and the cause remanded; the defendant will remain in custody until legally discharged.

Reversed and remanded.