
    In Bank.
    Dec. Term 1846.
    George Leggett vs. The State of Ohio.
    For the,purpose of proving a bargain and sale, the declarations of the parties thereto, at the timo, are a part of the res gesta, and competent evidence for the accused, to rebut the inference of guilt arising from the possession of stolen property.
    This is a Writ or Error to the Court of Common Pleas of Tuscarawas County. \
    The defendant below was indicted, and, at the October term of said Court, 1S46, tried and convicted of stealing a certain flea-bitten grey mare, the property of one Henry W. Smith, and sentenced to imprisonment in the Penitentiary for the term of three years. The plaintiff in error now seeks, by this- writ, to reverse the said judgment and proceedings. On the trial, a bill of exceptions was taken, which is made a part of the record ; and it appears, amongst other things, that the State gave evidence tending to prove the loss of the mare on the 14th or 15th of June, 1845. The plaintiff in error, to maintain the issue on his part, called a witness, who testified that about the middle of June, 1845, at Salineville, in the county of Columbiana, in the State of Ohio, one Delany then and there offered to trade to the witness a flea-bitten grey mare, which the plaintiff in error claimed was the one described in the indictment; and that, on that day, the plaintiff in error came to Salineville, traveling with a companion, in a sulky, and driving a black or dark brown mare; and the State having previously given evidence that, the evening before the mare mentioned in the indictment was taken, the plaintiff in error was traveling in such manner, with such black or dark brown mare, the plaintiff in error then asked the witness, who had already stated that Delany bantered the plaintiff in error to buy said grey mare, at the time above mentioned, at Salineville, to state what was said by said Delany and the plaintiff in error, at the time, as to the terms of said sale, and what was said by said Delany and the plaintiff in error, at the time of the transaction,, as to the fact 'whether .said-'sale 6f said grey mare was complete. To this so .offered, the', counsel'for the State' objected;' and-the Court yuled; that it was- incompetent for the accused to give, evidence to the jury of conversations had between him' and' 'Délány; .that'the .'plaintiff in' error might prove any facts connfected with ..the- sale, but that' Ms and Delany’s -declarations could.npt be detailed to'the-jury, to .prove.such ■ bale was madie. ■Exception -was taken .to this mpinioff;.Of. the .Court,, and the counsel for. the'plaintiff in error have assigned the same as error on the.record. ■ . ., .. '. . '' '•
    
      Hume Bingham; and-D.-K. Carter, tor Plaintiff in-error'.
    
      H. .Stanbery,. (Attorney General,).for the State.
   Wood, C, J.

-The question presented' is one'of evidence. There are.-two' billsóf exception in the.record; but'the same '. principle, precisely, is involved in 'each, and both are, therefore, ' '¡concluded, by a decision-upon either. The .statement of- the' case is extracted from the last bill .of .exceptions'in the record, •■and raises but .a single point: y Did the Court-of Common .'Pleas err in rejecting the 'evidence, offered to "the jury by the .Plaintiff in error?

The casé shows the prosecution had proved,- that the , night ■before the mare was-taken, the. plaintiff'in'error, was . traveling, .in.-a sulky,-with- a .black or dark brown mare, and, at. Saline-ville, Delany bantered him to'buy a flea-bitten grey, which the plaintiff in error claimed to be the identical mare for the stealing of whiph he was" on trial.' : , ■1 . ' .

. The-.St-áío'. -had proved him in the- possession; of course; of the ..one described in tlie indictment, and it became necessary for. the. accused, .'to ’explairi that'.possession, and'was'directly material to the issue beforé -.the jury. To do this, he did not offer his own declarations that hé ,had bought the mare, as one thing inter-alios acta, as'' .the. Court seemed to suppose, but the conversation between both himself and Delany,.by which it was claimed a bargain' and' sale was. completed, and- the ownership ' of the mare transferred to the accused, and his possession, therefore, innocent.

It was the fact that such a contract was made, that was material for the plaintiff in error to prove, and the Court admitted its competency, but ruled against the mode in which it was sought to be established. We think the.Court of Common Pleas erred in rejecting this proof. If it was competent to show a contract of bargain and sale, which would explain the inference of guilt the law raises from possession of. the goods, when a larceny has been committed, and which is undoubted, the best evidence of the agreement was the declarations of the parties to it at the time, for such;declarations constituted the contract itself. When they were proved, the bargain was complete. Such declarations, under such circumstances, are . a part of the res gesta, and equally admissible with any act done. This rule is supported by unquestionable authority. Ros. Crim. Ev. 23, 24 , 1 Phil. Ev. 233; 2 Phil. Ev. (note,) 592.

The judgment and proceedings of the Court of Common Pleas must be reversed, and a new trial directed.  