We are clearly of opinion that the court erred in allowing the witness Miller, as shown by defendant’s bill of exceptions, to testify that on the morning after the theft Salkill, the injured party, identified and claimed the pocket book as his property. What Salkill said to a third party, not being res gesteo nor in the presence or hearing of the accused, could and should not be used as evidence against the latter. Such testimony is res inter alios acta and inadmissible.

In all kinds of theft, including theft from the person, the ownership of the property must be proven as alleged, and so also must be proven the want of consent of the owner to the taking.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered April 11, 1883.