on the other proof, but also to generate a doubt. Such proof, however, is not to be considered "independent of" but in connection with the testimony; and it is for the jury to say, after a deliberate consideration of all the evidence, whether it establishes the guilt or innocence of the prisoner.' Where there is no evidence of the prisoner's character, it will not be presumed either good or bad. While the law presumes every one innocent, it does not presume any one to have a good character. Thus, the failure of one on trial for crime to call witnesses as to general good character raises no presumption of bad character."

§ 224. Consent. The fact that the accused obtained the property by consent of a person entrusted with it by the owner, under such circumstances as render such custodian guilty of embezzlement, will not prevent him from being convicted of larceny. So also evidence that the owner of the property was dead, and had said that the accused had his consent to take it, is properly excluded. One is guilty of larceny,

1 Williams v. State, 52 Ala. 411; Carson v. State, 50 Ala. 134; People v. Kerr, 6 N. Y. Cr. 406; United States v. Jackson, 29 Fed. Rep. 503; People v. Doggett, 62 Cal. 27.

2 Danner v. State, 54 Ala. 127; 25 Am. Rep. 662.

8 State v. Dockstader, 42 Iowa 436.

4 State v. McCartey, 17 Minn. 76. On a trial for the theft of a horse taken from the possession of H., who was holding it for S., defendant claimed that he had purchased the horse from H., but this was denied by H It appeared that defendant took the horse, and delivered it in part payment of a note due from him; that, while defendant was taking the horse to be so delivered, he was met by H., who knew the horse, but who said nothing to defendant about it. The county commissioner stated that the horse was an estray, and turned it over to S. to take care of until it was sold; that S. left the county, and that a short time before the day of sale the commissioner was told by H. that he did not know what had become of the horse. H. testified that he told the commissioner that it had gone off the range. Held, that the evidence tended to show that the horse was taken with H.'s consent, and did not support the conviction.-Chalk v. State, (Tex.) 18 S. W. Rep 864.

5 Sneed v. State, 4 Tex. App. 514. On the trial of an indictment for the larceny of a horse, the taking of which clandestinely in the night time was not denied by defendant, who did not inform the owner afterwards, the issue being only as to the intent of the taking, whether felonious or under an honest belief that he had a license from the owner to use the horse in escaping from revenue officers,—evidence that the owner knew defendant

although the owner knowing his intention furnished him opportunities that he might entrap him.' Thus, it is not consent to the taking for the owner to obtain the aid of a detective, who for the purpose of detection joins the defendant in a criminal act designed by the defendant and carried into execution by actual theft."

$ 225. Duress.-Duress avoids all acts and relieves from responsibility for crime.'

§ 226. Exculpatory declarations-(a) When admissible as part of the res gesta.-The well-settled rule is, that declarations of one on trial for a crime, if a part of the res gesta, are

had been engaged in illicit distilling, and on one occasion had found a keg of whiskey under his steps, which had been put there the night before, and "from some things which had occurred between them before, he supposed the defendant had put it there" is inadmissible, although proposed in connection with evidence showing intimate personal and social relations between them and that defendant had furnished whiskey to the prosecutor, which he knew had been made by defendant, in violation of the United States revenue law, before the horse disappeared, and that the prosecutor had told defendant that he might have his horse, at any time, to escape or avoid being arrested for violations of the revenue laws of the United States. -Durrett v. State, 62 Ala. 434. Held, also, that evidence was not admissible that, some time before the taking of the horse, the revenue officers had sought to arrest defendant while at work in a field, and fired upon him as he fled, and at other times had threatened to kill him; or that on one occasion he had attempted to flee the country, but forbore to attempt it, for fear of being arrested on the railroad train, there being no evidence, that, at the time of the taking of the horse, defendant was in such danger of arrest as to prevent his then notifying the owner, or informing him of it afterwards.-Ib. Held, also that a charge that defendant could not be convicted if he had the honest belief, at the time of the taking, that he had authority to take and use the horse to avoid arrest, was properly refused, in view of the evidence of the clandestine taking in the night time, etc., and of the want of evidence that he was pursued or in danger of arrest at the time.-Ib.

1 Varner v. State, 72 Ga. 745.

2

Pigg v. State, 43 Tex. 108. An officer, to detect the author of certain thefts, feigned a drunken slumber, with intent to allow any thief to rob him in order to make a case against him, having no suspicion that defendant would be the one. While in this condition, perfectly conscious, and making no resistance, defendant took money from his person. Held, not such consent as to take away a material element of the crime.-People v. Hanselman, 76 Cal 460.

Sanders v. State, 4 Crim. Law Mag. 359.

3

admissible in his behalf.' Under this rule, declarations of the accused made when first charged with the crime, are admissible. So, declarations of the accused, made before the alleged stealing, that the property was his own, are admissible in his behalf as part of the res gesta. Thus, for the purpose of proving a bargain and sale, the declarations of the parties thereto at the time are a part of the res gesta, and competent evidence for the defendant to rebut the presumption of guilt arising from the possession of stolen goods. And where it appears that the defendant took lawful possession of the property, his declaration as to his intention, made at the time, is admissible as part of the res gesta."

1 Phillips v. State, 19 Tex. App. 158.

2 Comfort v. People, 54 Ill. 404; State v. Patterson, 63 N. C 520; Shackelford v. State, 43 Tex. 138; Darnell v. State, Id. 147; Sager v. State, 11 Tex. App. 110. 3 State v. Thomas, 30 La. An. Part I. 600.

4 Leggett v. State, 15 Ohio 283.

5 Maddox v. State, 41 Tex. 205. In a trial for the larceny of a horse, buggy and harness, a witness testified that he saw defendant twice on a certain day at witness' stable, the second time with a horse and buggy. Held, that defendant could ask witness what he said to him at the time as to where he got the horse and buggy, though the words may have been selfserving, and tending to exculpate defendant -People v. Shepard, 70 Mich. 132. In a trial for theft of cattle, the proof showed that the animals in question, together with several which belonged to the defendant were “rounded up” by him in their accustomed range, and that he there sold those which belonged to him, and left the purchaser with the entire herd. Held, error to exclude evidence offered by defendant, that when he sold his cattle he told the purchaser to turn the others out of the herd, and, to assist the purchaser in separating the cattle, left with him a hired hand, who, after defendant's departure, hired to the purchaser and assisted in driving off the entire herd.-Turner v. State, 7 Tex. App. 596. On trial for stealing a cow, defendant offered to prove that on the night the cow was killed, before the family and others at his house went to bed, he declared openly in their presence that "he intended to kill the cow that night, and take her to the neighboring town to market; that he had received a message from the owner of the cow which authorized him to kill and pay for her." Held, admissible as part of the res gestæ and to show the intention of the defendant in killing the cow.-Cornelius v. State, 12 Ark. 782. In the same case, the defendant proved by M, a resident of the neighboring town, that the day before the cow was killed, he had engaged to deliver M. beef the following morning; and he then offered to prove by M. that he told him he had no beef of his own, but that there was one at his house, belonging to another man, which he would kill and pay for, and that he had permission from the owner to do so. Held, admissible, as part of the res geste, to show the intention of the defendant in killing the cow.-Id.

But declarations made by defendant after the crime had been committed, in excuse or explanation, are not admissible on his behalf.' Thus, where it appears that defendant borrowed a horse and, without the owner's consent, sold it, with the intent to convert it to his own use, evidence that defendant, on first meeting the owner, after having sold the horse, offered to pay for it, is no part of the res gesta, and does not come within the rule admitting a defendant's explanation of the possession.' So also, on a prosecution for the larceny of money, evidence of a remark made by defendant before the larceny, on exhibiting a roll of bills, is not admissible in his behalf, the remark being a declaration in his own interest. In Oregon, it seems that while a party's declarations are admissible against him, as part of the res gesta, they are not admissible in his favor, in criminal or in civil cases.*

(b) Declarations explanatory of possession or intent.-The declarations of defendant, made at the time of his arrest, as to how he came into possession of the stolen property are incompetent evidence for the defendant in some States. The rule is that such declarations made by him while in possession of the property explanatory of his possession, are admissible, as a part of the res gesta; but declarations made by him respecting the source of his title, or the contract under which he claimed. to have acquired possession, are inadmissible.

In other juris

1 State v. Ward, 103 N. C. 419; Powell v. State, 44 Tex. 63. Brooks v. State, 26 Tex. App 184. A party accused of the larceny of a gold piece told the officer that he would show him where it was concealed, and, on being taken to his house, pointed out its hiding place, and then said that the servant of the owner of the gold piece had given it to him. Held, that this declaration was not part of the res gesta.-Cooper v. State, 63 Ala. 80. In the trial of a party for the theft of a horse he had hired, the defense offered in evidence certain letters written by him subsequent to the res gestæ, and asserting that the horse had been taken from him by desperadoes, etc. Held, that the letters were properly excluded.-Jones v. State, 8 Tex. App. 648.

2 Baker v. State, (Wis.) 50 N. W. Rep. 518.

4 State v. Anderson, 10 Or. 448.

5 Taylor v. State, 42 Ala. 529; Maynard v. State, 46 Ala. 85. Allen v. State, 73 Ala. 23; State v. Pettis, 63 Me 124 The prosecutor, or chief witness for the prosecution, testifying to the commission of the act charged as a larceny in the month of October, the prosecution must be confined to that particular offense, and cannot adduce evidence to other dis

dictions, it is a well-settled rule that what explanations a person makes while in the possession of stolen property, at the time of finding it in his possession, are admissible in evidence for such party, as explanatory of the character of his possession; and it is for the jury to weigh them and consider whether they were made in good faith and were true, or only for the purpose of self-exculpation.' Thus, declarations of the accused made previous to and at the time of arrest are admissible to show intent and to repel the charge of felonious taking. The objection goes more to the effect than to the admissibility.' Such declarations of the accused, as to the character of his possession of the property are not admissible in defense, unless such possession and acts of ownership, at the time of such declarations, are first proved;' and their admission must be restricted to the time when he was first found in possession, or first ascertained that his right was questioned. Whether the declaration of the defendant before he was suspected of the theft, and before any search was made, accounting for his possession of the property, is admissible in his favor-query.'

(c) Declarations of owner, or third persons.-The declarations of the alleged owner of stolen bank notes, made on the morning after the night of the prisoner's arrest, that "he and tinct acts; and though the witness also testifies, on cross-examination, to the commission of other similar acts two or three months previously, this does not authorize the defendant to introduce as evidence his own exculpatory declarations, contemporaneous with those acts, and tending to disprove any criminal intent.-Bonham v. State, 65 Ala. 356.

1 Bennett v. People, 96 Ill. 602.

2 State v. Young, 41 La. An. 94. Meat alleged to have been stolen from a house. being in a sack, and the prisoner having in the same room a sack of his own with meat in it, what he said to a neighbor soon after arriving at home, tending to show that he had taken the wrong sack by mistake, was admissible in his behalf.-Walker v. State, 28 Ga. 258; McElven v. State, 30 Ga. 872; Hall v. State, 34 Ga. 208; Lovett v. State, 80 Ga. 255. On a trial for stealing a horse, the defendant offered to show that just previous to taking the animal, he had made arrangements with a man to bring the horse back, after he had driven to a certain place. Held, admissible to explain the defendant's conduct and intention.-State v. Shermer, 55 Mo. 83.

3 Cameron v. State, 44 Tex. 652.

4 Hampton v. State, 5 Tex. App. 463; Henry v. State, 9 Tex. App. 358; Childress v. State, 10 Tex. App. 698.

Tipper v. Com. 1 Metc. (Ky.) 6.