
    The People v. Lewis Newton.
    
      Criminal law — Evidence—Hearsay.
    Two men were found in the house where a rape had been committed. One was captured, and convicted, and on the trial of another respondent, who was claimed to be the party who escaped, a witness was permitted to testify that, soon after the capture of the respondent who had been convicted, he stated, in the presence of the witness, that the respondent on trial brought him to the house where the crime was committed. And it is held that the testimony was hearsay, and not admissible as a part of the res gestee.
    
    Error to Oakland. (Moore, J.)
    Argued June 22, 1893.
    Decided July 26, 1893.
    Eespondent was convicted of the crime of rape, and sentenced to imprisonment in the State prison for sev^n years.
    Judgment reversed, and a new trial ordered.
    The facts are stated in the opinion.
    
      Atkinson & Carpenter, for respondent.
    
      A. A. Ellis, Attorney General, and George W. Smith, Prosecuting Attorney, for the people.
   Hooker, C. J.

The respondent appeals from a conviction of rape. William O’Brien was also charged with the same offense, and had pleaded guilty. The offense was perpetrated at the residence of complainant during the absence of tbe family, and tbe men were in tbe house on the return of the family. O’Brien was captured and detained; the other broke away. Soon after, he came to the door, and threatened to shoot Judd Reading if he did not let his partner go. Judd stated that this man was the defendant, Newton. A Mrs. Smith was permitted to testify that a few minutes after the arrest of O’Brien, and after the other man had escaped, but before his return, O’Brien said:

“Mrs. Reading, how came I here? Oh, I know; Lewis Newton brought me here.’’

The tendency of this testimony was to establish Newton’s identity. It was the statement of a confessed criminal that another had brought him to the place where the ■offense was committed. It was hearsay, and we think was not admissible upon the theory that it was a part of the res gestee.

The judgment must be set aside, and a new trial ordered.

The other Justices concurred.  