
    Kirby vs. The State.
    A, wnsjfoivnil mürdered oh the pine mountain: whilst on his way there, and the day/ before he was supposed to be killed, he stated that lie was going there, and defendant (who was indicted for his murder,) was to accompany him. The defendant was not present when tins declaration was made. Held; that this statement of the deceased was incompetent testimony.
    The plaintiff in error was indicted for the murder of Peter Elrod, who was found dead with marks of violence on him, on the pine mountain in the county of White. Th’e State introduced Meridith Baker, a witness, who stated, £Cth$t lie saw Elrod in Sparta' the' day before he was said to have been killed, and whilst on his way to the pine mountain; that he asked Elrod to go home with him; he said he could not, that he had promised to go to Kirby’s house that night, and go with him to the pine mountain. That he was to go with defendant next day, and defendant was to show him a salt petre cave.” This evidence was objected to by the defendant’s counsel,- but the evidence was admitted to go to the j'ury, to which the defendant excepted. The defendant was found guilty of murder in the first degree, and moved for a ne# trial, hut the motion was overruled, and judgment of death was pronounced upon him, from which this appeal in error is-prosecuted".
    It did not appear by endorsements on the feck of tfyo in-flictment, as it was set out in the record, that the witnesses upoft . ' testimony it was found by the grand Jury, were sworn and sent to the grand jury; nor did it appear by endorsement on the back of it, who the prosecutor was'.
    
    
      Charles Scott, for plaintiff in error.
    1st. The judgment ought to be reversed, because the record does not show that the indictment upon which the accused was arraigned and tried, was founded upon the testimony of witnesses legally sworn and sent before the grand jury. The names of the witnesses, and that they were sworn in open court and sent before the grand jury, should have been endorsed upon the indictment, which endorsement should have been signed officially by the" clerk. 1 Chit. Crim. Law, 261, and 264: 2 Gall. Rep: 364.
    2d. The record shows that there was a prosecutor, but his name was not endorsed or marked upon the back of the in-dic'tment, which is expressly required by the act of 1801, c. 30, § 1; therefore the preferring of the indictment, as well as the finding of the grand jury, were acts wholly unauthorized and illegal. 1 Scott’s Rev. 717: 2 Bibb R. 210.
    3d.' The act of 1812, c. 44, gives the solicitor the right, under special circumstances, to prefer ex officio an indictment to the grand jury; but this power can only exist when there is no prosecutor, and where an inquest has been held by the coroner, and he has made a proper return to court. 2 Scott’s Rev. 87.
    4th. The testimony of Baker and England was inadmissible as forming no part of the res gestee. That part of the declaration of the deceased which speaks of Kirby intending, to accompany him to the pine mountain, was not in their evidence when’this case was first before the court. This evidence is distinguishable from that, and is clearly inadmissable, because defendant was not present when the declaration was made; was not seen accompanying the deceased, and the statement necessarily derives its credit entirely from the person who made it. 1 Starkie’s Ev. 44, 47, 48, 49, 50, 51, 52: 4 Mass. R. 708: Roscoe’s Crim. Ev. 20: 7 Yer. R. 259.
    
      
      S. Turney and J. R. M’ Cormick, argued 'on the same side, and G. S. Yerger, for the State, contra.
    
    
      
       It was subsequently ascertained that all these endorsements were on the indict» ment,tmt were omitted in copying it.
    
   GReen, X.

delivered the opinion of the court.

We are of opinion that the evidence of Baker was illegal and Wás improperly received. When this case was before tíie court upon a former occasion, (7 Yer. R. 259,) the evidence of this same witness constituted one of the grounds assigned for error. ' In that case this court thought that the testimony was competent, hut the evidence in the record now before us, differs materially from that of the same witness as presented in the record then before the court. In that case, the evidence of Baker as quoted in the opinion of the court, was, <£that Elrod told him at Sparta the evening before the day on which he wás missing, that he was going the next day to the pine mountain, to hunt a salt petre cave.” According to this statement, Elrod was at Sparta on his way to the mountain, and he stated to the witness that he was going there, and the purpose for which he was making the journey. The court held, and we think correctly, that this statement setting forth the place to which he was going,' and his intention in going there was part of the transaction, and as such was admissable. But Baker’s evidence as set forth in the present record, goes much farther than this. In addition to the statement of his own purpose in his journey, he told the witness that he was to go with the defendant next day to the pine mountain, and that the defendant was to show him á salt petre cave. Now how does this statement constitute any part of the thing doing? Whether Kirby was to accompany him or not, could not affect his intentions in going to the mountain, nor could his statement of that fact tend to explain his purpose in going there. His declaration of his own purpose is evidence, because it explains his intentions, and his intentions constitute part of the thing he was doing. He was traveling, and as he was going, he had certain intentions, and as these intentions could only be known by his declaration of them, such declaration is evidence.' But it is impossible that Kirby’s going with him could constitute any part of the thing which he was doing, which was his own journey. We think,- therefore, that this part 0f Baker’s evidence which relates "to Kirby’s intend-f , . , ..... mg to accompany Elrod, was improperly admitted by the court to go to the jury. The evidence of Jesse England was ⅛0 objected to. This witnesses’ statement is in substance such as Baker’s was upon the former occasion,-and’we think was properly admitted .■

The objection which is taken to the proceeding, because there does no-t appear to have been the name of a prosecutor on the indictment, it is not necessary to decide, and we therefore leave it for the action of the court below. The judgment will be reversed, and the prisoner will be remanded to White county, to be proceeded against anew.

Judgment reversed.  