
    Hensley vs. State.
    Where defendant was charged with arson and the proof was circumstantial as to her guilty agency, proof that another person had threatened to burn the house, and was in the vicinity at the time it was burned, was held admissible.
    Hensley was indicted in the Circuit Court of Overton county for burning down the mill-house of one Dick. She pleaded not guilty, and on the trial before Judge March-banks and a jury, at the June term, 1848, it appeared that the mill-house was burned down in the night. It 'appeared that the defendant had threatened to burn down the house, and entertained hostility to the prosecutor, Dick; that the tracks of a horse were discovered in the vicinity of the mill-house, which resembled those of a horse which belonged to the defendant, and that she was in the neighborhood of the house at the time it was burned, &c. &c. The “defendant offered to prove that John Richards had threatened to burn the mill-house, and was in the neighborhood when it was burned.” To this proof, the Attorney General objected, and the objection was sustained.
    The jury found the defendant guilty, and she was sentenced to two years confinement in the penitentiary. From this judgment, she appealed.
    
      Gardenhire, for the plaintiff in error.
    The court erred in not permitting the defendent to prove that another person, previous to the burning of the mill, had threatened to burn it; that he was known to have been in the neighborhood at the time it was burned, and fled from the country immediately afterwards.
    Mr. Starkie, in his treatise on Evidence, 1st vol., page 510, says: “In practice where it is certain that one of two individuals committed the offence charged, but it is uncertain whether the one or the other was the guilty agent, neither can be convicted.” 3d Hump., 289.
    Now, if the circuit judge was correct in rejecting this testimony, the evidence never could make it uncertain, which of two persons was the guilty agent. For any evidence tending to criminate a person not on trial would always be rejected.
    
      Attorney General, for the State.
   Turley, J.

delivered the opinion of the court.

In this case, the prisoner was convicted of the crime of arson in the Circuit Court of Overton county, upon circumstantial proof. Upon her trial, she proposed to prove that one John Richards had threatened to burn the mill (for the burning of which she was indicted) and that he was in the neighborhood the night it was burned. To the reception of this testimony, the Attorney General objected, and the objection was sustained by the court and the testimony excluded. To which there is an exception on the part of the prisoner.

We think the testimony offered was legitimate proof and ought to have been heard by the jury. Surely it was a legitimate defence for the prisoner to shew that another and not herself perpetrated the crime with which she was accused, and any proof would be legitimate to establish this fact, which would have been legal against the individual upon whom it is attempted to place it, if he had been upon trial therefor.

It will not be controverted that if John Richards had been upon trial for burning the mill, that proof that he had threatened to do so, and that he was in the neighborhood the night it was burned, would be legal proof of his guilt to be submitted to the jury. ' So it was, when offered in defence of the prisoner, and this the more especially inasmuch as the proof against her consisted of statements said to have been made by her at different times, that the mill would never do its owner much good, and that he need not be surprised some day to find it burned.

The judgment of the Circuit Court will be reversed, and the case will be remanded for a new trial.  