
    Kendrick vs. The State.
    Proof that defendant was charged with the commission of an offence, and that he neither admitted or denied it, is admissible. It is otherwise, if he deny the charge.
    Kendrick was indicted for stealing a bank bill in the county of McNairy. On the trial before Hardin, special judge and a jury, Walsh testified that he had heard Rushing, the clerk of Shull, state, in the presence of defendant, that a twenty dollar bill was stolen from him or the store in his custody; that he believed the defendant had stolen it; that he proposed to search the defendant, to which the defendant agreed; that defendant was searched, and a twenty dollar bill was found in his possession; that Rushing said it was the bill; that defendant denied it, and said it was his property, and that he had won it at a horse race.
    The witness also proved that Rushing was dead. This proof was objected to, but the objection was overruled, and it was submitted to the consideration of the jury.
    The judge stated to the jury that if it appeared that Rushing was dead, and that he had declared in the presence of defendant that money had been stolen from him, and that money was immediately found in possession of defendant, corresponding in description with that described by Rushing, and that Rushing claimed it on sight, the jury might safely conclude that a larceny had been committed; that if defendant claimed the money as his own, the claim of the defendant, all other circumstances being equal, would be at least as good as Rushing’s, and that, in order to satisfy themselves of the guilt or innocence of the defendant, they would inquire whether the defendant’s conduct and statements were consistent with his innocence, or if his claim was set up as a subterfuge, and the jury might weigh all that Rushing said and did, and all that defendant said and did on the occasion referred to.
    
      There was a verdict of guilty, and three years’ confinement in the penitentiary, and judgment thereupon. The defendant appealed.
    
      A. Miller, for the plaintiff in error.
    
      Attorney General, for the State.
   TuRley, J.

delivered the opinion of the court.

The testimony upon which the conviction in this case for the larceny charged in the bill of indictment, was obtained by the State, is illegal,. The Circuit Judge, in permitting evidence of what Dixon H. Rushing had charged the prisoner with, in relation to the offence, to go to the jury, was laboring under a mistaken apprehension as to the rule of evidence as applicable to such a case.

The law upon this subject is this; if a man be charged with the commission of an offence, and he neither admit or deny it, if facts in relation thereto, of which, if true, he must be cognisant, be charged in his presence and hearing to exist, and he do not controvert them, proof of such charge having been made, is legitimate. But if he deny the charge of his guilt, if he controvert the truth of the facts, proof of such charges cannot be heard, because they are mere charges unsupported by oath, and lack that confirmation, which is supposed to be given to them by the implied admission of the person charged, in not denying them.

In the case under consideration, the charges and statements made against the prisoner by Dixon H. Rushing, were always peremptorily denied by him, and he invariably insisted that the money found in his possession and claimed by Rushing was his own, and there is nothing to controvert his claim, except the uncorroborated charge of Rushing to tbe contrary, made, as the proof shows, under high excitement. It will never do to sustain a conviction under such circumstances.

Let the judgment be reversed and the case remanded.  