
    Hurt v. The State.
    
      Indictment for Burglary.
    
    1. Limitation of prosemtion. — A criminal prosecution for burglary must bo commenced (Rev. Code, § 3951) within three years next after the commission of the offense: consequently, where the bill of exceptions, purporting to set out all the evidence, shows that the only proof of the time when the offense was committed fixed it more than three years before the indictment was found, and the record does not show any prior commencement of the prosecution, a charge to the jury, which authorizes a conviction on proof that the offense was committed “before the finding of the indictment,” is erroneous.
    2. Sufficiency of indictment — In an indictment for burglary (Rev. Code, § 3695), an averment that, in the building broken into and entered, “meat and flour, things of value, were then and there kept for use,” &c., is a sufficient averment of their value.
    3. Hearsay, and res gestee. — The conduct and conversation of parties, accompanying an act, are generally admissible as a part of the res gestas ; yet, a message sent to the accused by his employer, though it might be admissible as tending to explain his flight, which had been proved as a circumstance against him, is, prima facie, mere hearsay; and when offered for the purpose of showing “that the defendant ran away in consequence of it,” the appellate court can not affirm that its rejection was erroneous, when the message itself is not Bet out in the record.
    Feom the Circuit Court of Greene.
    Tried before the Hon. Luther R. Smith,
    
      The indictment in this case, which was found on the 6th January, 1876, contained two counts ; the first charging that the defendant, “ with intent to steal, broke into and entered the dwelling-house, house within the the curtilage of the dwelling-house, shop, store, warehouse, smoke-house, or other building of T. 0. Clark, in which goods, merchandise, meat, flour, things of value, were kept for use, sale, or deposit and the second, that he broke and entered the building, described as above, “ in which goods, merchandise, meat, flour, and other valuable things, were kept for use,” &c., “ and stole therefrom about one hundred pounds of meat, and a lot of flour, of value less than one hundred dollars, the personal property of T. 0. Clark.” The defendant demurred to the indictment — 1st, because the “ other building ” was not described with sufficient certainty; and, 2d, because there was “ no sufficient averment that the meat and flour are things of value.” The court overruled the demurrer, and the defendant then pleaded not guilty.
    On the trial, as the bill of exceptions shows, the State introduced one Freeman as a witness, who was the superintendent of T. C. Clark’s plantation in said county, and who testified, that he found the smoke-house on the place broken open one morning, and a quantity of meat and flour taken from it; that he discovered the tracks of a mule near by, and followed them to “a patch” near the defendant’s house, where he found the meat and flour “ lying in the corner of the patchthat he could not remember exactly when this was, but it was some time in the year 1871, or 1872and he stated other facts tending to show that the burglary was committed by the defendant. It was also proved, on the part of the State, that the defendant could not be found when the deputy sheriff went to arrest him, and was arrested some time afterwards in another part of the county. The defendant introduced two witnesses, his son and step-son, whose testimony tended to prove an alibi. One of these witnesses was asked by the defendant’s counsel, “ if the defendant sent him with any message to Dr. Webb, his employer, on the day Mr. Freeman came on the place; and if so, what it was, and what he told the defendant on his return.” The State objected to this question; and the defendant’s counsel then stated to the court, “ that the object of the testimony was to show why the defendant ran away — that it was in consequence of the message he received from Dr. Webb.” The court sustained the objection, and excluded the evidence; to which the defendant reserved an objection. The bill of exceptions does not state what the message was.
    “ This being all the evidence, the court charged the jury, that if they believed from tbe evidence, beyond a reasonable doubt, that tbe defendant, before tbe finding of tbe indictment, and in said county, broke into and entered tbe smokehouse of T. 0. Clark, with, intent to steal; and that meat and flour were kept there, and that they were things of value; and that tbe defendant did steal tbe meat and flour of said Clark, and it was worth about sixty dollars, — then they must find tbe defendant guilty as charged.” To this charge tbe defendant excepted; and be now presents for revision, and as grounds of reversal, tbe overruling of bis demurrer to tbe indictment, tbe rejection of tbe evidence offered by him, and tbe charge of tbe court.
    T. W. Colemaíí, and E. Moegah, for tbe defendant.
    Jno. W. A. Sakfobd, Attorney-General, for tbe State.
   STONE, J. —

Tbe only evidence in this record, of tbe time when tbe offense was committed, places it in 1871, or 1872. Tbe indictment was found in January, 1876; necessarily more than three years after tbe last possible clay in 1872. Burglary is not one of tbe offenses mentioned in either of tbe sections 3949 and 3950 of tbe Bevised Code. Hence, it is not governed by them. Being a felony, and not being specified in said two sections, it falls within tbe influence of section 3951, which declares that tbe prosecution of all other felonies “must be commenced within three years next after tbe commission of tbe offense.” Postulating all tbe ingredients of tbe statutory crime of burglary, except that of tbe three years bmitation, tbe court charged tbe jury, that if they find the defendant committed tbe offense “before the finding of this indictment,” then they must find him guilty as charged, in tbe indictment. This authorized and required tbe jury to convict, no matter bow long tbe offense was committed before tbe indictment was found. This was clearly an error. If there was a warrant of arrest, or tbe prisoner bound over, before tbe three years expired, and the indictment was but a continuation of such prosecution, and not tbe commencement of it, this should have been shown, and a proper charge, based on it, should have been given. — Foster v. The State, 38 Ala. 428; Ross v. The State, at present term.

Tbe indictment charges that tbe “other building,” into which it is alleged tbe defendant broke and entered, contained meat and flour, “ things of value,” which were kept there “for use, sale, or deposit.” This is a sufficient averment that tbe articles bad value, and renders tbe indictment good. — Norris v. The State, 50 Ala. 126; Danner v. The State, in manuscript.

Tbe question of tbe exclusion of evidence is so presented, tbat we can not affirm tbe Circuit Court erred in tbe ruling. If a message was sent by Dr. Webb, tbe employer, to tbe accused, we are not informed wbat it was. Prima fade, it was hearsay, and irrelevant. If it were sucb as to cause tbe defendant to leave, or tended to sbow tbat be probably left on tbat account, we can not say it should have been excluded. Tbe conduct and conversation of parties, accompanying an act, are generally admissible as part of the res gestae. — Autauga County v. Davis, 32 Ala. 703; 1 Brick. Digest, 843. Of course, tbe weight of sucb evidence, when adduced, would be a question for tbe jury. Tbe manner of tbe leaving, whether hasty or deliberate, and whether public or private, and tbe conduct afterwards, should always be taken into tbe account, in determining whether consciousness of guilt, or some other motive, -prompted tbe flight.

Tbe judgment of tbe Circuit Court is reversed, and tbe cause remanded. Let tbe prisoner remain in custody, until discharged by due course of law.  