
    John Patton v. The State of Ohio.
    The acts and declarations of a conspirator may, after sufficient proof of conspiracy, be given in evidence to charge his fellow-conspirator, but subject always to the limitation that the acts and declarations admitted be those only whi oh were made and done during the pendency of the criminal enterprise, and in furtherance of the common object.
    ’Where the declarations are merely a narrative of a past occurrence, they can not be received as evidence of such occurrence. They must be concomitant with the principal act, and connected with it, so as to constitute a part of the res gesta.
    
    In error to the court of common pleas of Hamilton county.
    The plaintiff in error was indicted for, and convicted of, miscon•duct in office, as one of the commissioners of Hamilton county.
    The indictment charges, in substance, that he combined with one Samuel B. Arnold to cheat the county, and by falsely representing to oüe of his associates in office (Marine Ruffner), that it was imperatively necessary to rebuild a Abridge across Lick Run, in [468 "that county, immediately, and that the building of such bridge was worth $700, induced his associate to join with him in executing a written contract with Arnold (who, it is charged, applied therefor at the instance of the accused), to rebuild the bridge for that sum; whereas, in fact, it was not necessary to rebuild the bridge in question, nor, even if necessary, was it worth more than the sum of $140, all which the accused well knew; and that, in so fraudulently obtaining the signature of his associate, Ruffner, to the contract with Arnold, and in signing it himself, he was guilty of corrupt misconduct in office.
    The bill of exceptions is very voluminous, containing all the evi■denee, and numerous errors are assigned; but the view taken of the ■case by the court, renders it necessary to state only that it appears from the bill of exceptions, that Arnold built the bridge, and after it was finished, received from Patton and Ruffner an order for the ■stipulated sum of $700, and on the same day obtained the money at the Central Bank; that upon the trial in the court below, after the ■state had rested, Arnold, having been called as a witness for the defense, was asked, upon cross-examination, whether he had not, on the day the money was paid to him, made to one Charles Hilts, at the office of the latter, certain specified declarations as to Patton, which implied not only fraud on the part of Patton in regard to-the making, of the contract for the bridge, but that Arnold was to-give Patton $100 of the money thus paid to him for the bridge. Arnold denied that he had made such declarations ; and after the defense had rested, the state called Hilts, who testified that Arnold stopped at his office, when coming into town to see the commissioners, on the day he drew his money (but whether before or after 469] he received either the order or money, does not clearly *appear), and that while there, Arnold made the specific declaration, in regard to Patton, which, on his cross-examination, he had denied making, and which declarations, if competent for that purpose, tended strongly to prove that Patton was guilty of the misconduct, charged. All of this testimony of Hilts was objected to, but the objection was overruled, and the defendant excepted.
    The counsel for the defense asked the court to charge the jury that the testimony of Hilts, as to the above-specified declarations of Arnold, was competent only for the purpose of impeaching Arnold,, but was not to, be considered as testimony against Patton. The court did charge that such was the law, unless the jury should find, from the other evidence (excluding for this purpose the declarations of Arnold, as testified to by Hilts), in the case “that a conspiracy between Patton and Arnold to defraud the county, existed at the timebut if they should find from such other evidence, “ that a conspiracy was entered into by Arnold and Patton to cheat, and defraud the county on this contract,” they might “take all the-evidence of Arnold, as well as his. declarations in regard to the matter, and give it such weight as, under all the circumstances, they thought it deserved.” The defendant excepted to the entire charge-of the court; and this ruling is among the matters assigned for error.
    
      Geo. E. Pugh, Worthington & Matthews, and Ferguson & Long, for plaintiff in error.
    
      C. P. Wolcott, attorney-general, for state.
   Bowen, J.

We are unable to perceive any reason resting either on principle or well-considered authority, which will warrant this-ruling of the court.

It is unquestionably true, that the acts and declarations *of a conspirator may, after sufficient proof of the fact of conspiracy, be given in evidence to charge his fellow, but subject always to this limitation, that the acts and declarations admitted he those only which were made and'done during the pendency of the criminal enterprise, and in furtherance of the common object. Where the declarations are merely a narrative of a past occurrence, they can not be received as evidence of such occurrence. They must be concomitant with the principal act, and connected with it, so as to constitute a part of the res gesta. This is upon the plain ground, that the act and 'declaration of each in prosecution of the enterprise, and while engaged in accomplishing the common design, is to be considered the act and declaration of all, each being deemed the agent of all. 1 Greenl. Ev. 140; United States v. Gooding, 12 Wheat. 460; Am. Fur Co. v. United States, 2 Peters, 358; Stetson v. City Bank of New Orleans, 2 Ohio St. 167, Here the conspiracy charged by the indictment, was the fraudulent combination by Patton with Arnold, in obtaining the contract for rebuilding the bridge. Whether the conspiracy shall be deemed to have continued until the money was actually paid Arnold or not, or whether the latter’s declarations were made before or after he actually received either the order or the money, seems wholly immaterial. In any case, it can not be claimed that the declarations of Arnold to Hilts were made in furtherance of the unlawful enterprise, or accompanied any act done in accomplishment of the common design. They are simply narrative of past occurrences.

The judgment of the common pleas is reversed, and the cause remanded.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.  