
    George W. Britton and A. J. Long vs. The State.
    Evidence. Declarations made in the absence of the prisoner. It is not competent for the State to prove the declarations of third persons, in reference to the matters involved in the trial of the cause, unless the defendants were present at the time the declarations were made.
    EROM HAWKINS.
    The plaintiffs in error wore convicted, at the February Term, 1867, of involuntary manslaughter, and have appealed to this Court. Judge R. R. ButleR, presiding.
    James T. Shields, for plaintiffs in error.
    Thos. H. Coldwell, Attorney-General, for the State.
   Hawkins, J.,

delivered the opinion of the Court.

This is an indictment charging the plaintiffs in error, and others, with the murder of one Dykes.

On the trial in the Circuit Court, Mrs. Dykes a witness for the State, was asked what Martin Crawford had said some two or three weeks after the killing. To this testimony the plaintiffs in error objected; the objection was overruled, and the witness permitted to answer, when she said, in substance, that some weeks after the killing, and while he was hoeing corn for her, Crawford told her, Long and Britton and others, were along when the hilling was done that night.

Crawford was jointly indicted with the plaintiffs in error, but was not upon trial; nor were they present at the time Crawford made this statement to the witness.

Witness, Henderson, states, that, on the morning before the killing he saw the plaintiffs in error in company with a squad of soldiers. On the next day, he saw the same party returning; but he did not see the plaintiffs in error along at that time. The witness then stated, in substance, that this squad of soldiers, on their return, told him they had killed Jones, Slater, and Dykes. ' This evidence was also objected to; but the objection was overruled, and the testimony permitted to go to the jury.

Witness, Jones, stated, in substance, that he heard Long, one of the plaintiffs in error, say — in a conversation at the jail with one Grillenwater, who was a lawyer, while Long was a prisoner, and immediately after he had been told if he would make a full confession he would be turned out of jail — that he was in the scout at the time Dykes was killed. This evidence, also, was objected to; but the objection was overruled, and the testimony permitted to go to the jury.

We think, in each of these instances, the action of the Court in overruling the objections and admitting the testimony, was clearly erroneous, upon the ground that the testimony was incompetent.

The judgment of the Circuit Court, will, therefore, be reversed, and the cause remanded.  