State v. . Bethel

MerrimoN, J., (after stating the facts)! The statute gave the defendant the right to be a witness in his own behalf, and as such he was competent to testify as to any pertinent material facts, just as any other witness might do. The substance of the charge against him was, that he had knowingly and illicitly received the stolen chestnuts. How he got them, was a material inquiry, and he had the right to show by himself, as well as other witnesses, that he got them honestly — where, from whom, how, under what circumstances, and what was done and said at the time, and in connection with the receipt of them, by himself and' the person from *461 whom he received them. What was thus said was explanatory — part of the res gestos. In the ordinary course of human conduct, the words expressed at the time an act is done-in connection with, and in respect to it, indicate its character and purpose. They are evidence of the purpose. Of course, if it appears that what was said, was said with the distinct intent to mislead, it would not be evidence. In Roscoe’s Cr. Ev., 24 (4 Am. Ed.), it is said that, “ On a charge of larceny, when the proof against the prisoner is,, that the stolen property was found in his possession, it would, be competent to show in behalf of the prisoner, that a third person left the property in his care, saying that he would call for it again afterwards; for it is material in such case to inquire under what circumstances the prisoner first-had possession of the property.” (1 Phil. Ev., 233, 7th Ed.) And so in this case, it was competent for the defendant to-show that he received the chestnuts from Harris in the lawful course of business, the latter saying at the time-he delivered them, that they were the property of himself and his partner, and they wished the defendant to sell them. It may be that-the suggested conversation was feigned and the proposed evidence false; nevertheless, it was evidence to go to and be weighed by the jury. Evans v. Howell, 84 N. C., 461; State v. Anderson, 92 N. C., 732; Ros. Cr. Ev., 23; 1 Gr. Ev., §108. There is error, and the defendant is entitled to a new trial. To that end let this opinion be certified to the Superior-Court. It is so ordered. Error. Venire de novo.