
    Louis Grantham et al. v. The State.
    (Division A.
    Oct. 9, 1933.)
    [149 So. 798.
    No. 30617.]
    N. T. Currie (of Currie & Currie), of Hattiesburg, for appellants.
    
      E. F. Coleman, of Purvis,- for appellants.
    Herbert Nunnery, Assistant Attorney-General, for the state.
    
      Argued orally by N. T. Currie, for appellant.
   McGowen, J.,

delivered the opinion of the court.

The appellants, Grantham, Dunn, and Broom, were jointly indicted for burglary and larceny of a dwelling house, the property of J. J. Shelton, Sr., convicted by a jury, and sentenced to serve a term of three years in the state penitentiary, from which an appeal is prosecuted.

As to appellants Dunn and Broom, there is not a scintilla of competent evidence of their guilt in this record. Witnesses testified that Grantham stated to them, long-after the completion of the crime, and after a conspiracy —if one existed — had been terminated, that he watched while Dunn and Broom entered the dwelling house. Of course, this testimony as to what Grantham said was competent as against himself, there being no question but that the dwelling house in question was burglarized, as alleged in the indictment, but such declarations, not having been made in the presence of the other two appellants, Dunn and Broom, were not competent against them; and, when objection was interposed to this evidence against them,, the court should have sustained it as to the two defendants who were not present when Grantham made the confession. Lynes v. State, 36 Miss. 617; Foster v. State, 92 Miss. 257, 45 So. 859; Tate v. State, 95 Miss. 138, 48 So. 13; Osborne v. State, 99 Miss. 419, 55 So. 52; Pickens v. State, 129 Miss. 191, 91 So. 906.

In regard to the appellant, Louis Grantham, the case must be affirmed. There is no merit in the objections urged as to the alleged variance and amendment of the indictment or as to the instruction complained of, and there is no error as to Grantham.

Reversed and remanded as to appellants Dunn and Broom; affirmed as to appellant Grantham.  