
    (Hamilton County Court of Common Pleas.)
    Wm. A. CORDES v. THE STATE.
    
      Statement of a driver of a milk wagon to arrresting officers as to who owned the wagon held to be hearsay when repeated in court by the officers.
    
    Heard on error to Magistrate’s judgment finding plaintiff guilty of having in his possession, with intent to sell it as pure milk, one gallon of milk from which part of the cream had been removed.
   Buchwalter J.

This judgment must be reversed, which is ordered at the cost of the prosecution. At various times the witnesses for the prosecution testified in response to questions by the state’s attorney that the driver of the milk wagon, from which the milk sample was taken, said that it was Wm. Corde’s (defendant’s) wagon. Such statements, counsel for defendant moved to rule out, which motion was overruled by the trial justice.

These declarations were not a part of the res gestae; the driver’s declarations were not under oath — were not vital to the issues whether defendant was guilty as charged in the complaint of having “in his possession, with intent to sell as pure milk, one gallon of milk from which part of the cream had been removed, contrary to the statute,” etc.

Burch & Johnson, for Plaintiff in Error.

Otto J. Renner, for the State.

Especially when we consider the meagerness of any proof on the subject of the defendant’s doing anything as to this milk, we do not see that such proof was vital to the issue and had a controlling effect.

I therefore put this reversal on the ground above stated — erroneous admission by the justice of hearsay proof.  