On the trial, the prosecution introduced and mainly relied upon the testimony of Dan Gray, a confessed pariiceps criminis. Whilst on his cross-examination as a witness, Gray was asked by defendant’s counsel “if he did not, while driving the wagon and cotton into Bremond, while the defendant was riding on the bale of cotton, about a half a mile from town, meet one John Tatum, and if the defendant did not tell Tatum that it was a líale of cotton of witness’s, and that he had been employed to sell it for him (witness)?” To which the witness replied that he did not go on the wagon with defendant more than a quarter of a mile from where they loaded the bale ; that he was not with him when he was a mile or a half a mile from Bremond ,• did not meet John Tatum on the road, and heard no conversation between Tatum and defendant at all.
Tatum, being introduced as a witness for defendant, after testifying that he had met defendant and Dan Gray about one mile from Bremond, about eight o’clock, on or about the. 9th of December, 1879, and that Dan Gray was driving *197a two-horse wagon pulled by two horses, with one bale of cotton in said wagon, and defendant sitting on said bale of cotton, was then asked if the defendant did not tell him (Tatum) that the bale of cotton was the property of Dan Gray, and that Dan had employed him to sell it for him. The State objected to the evidence, and the objection was sustained and the evidence excluded, as shown by defendant’s third bill of exceptions.
This was error. A proper predicate for its introduction had been laid, as seen above, and defendant was not only entitled to the evidence, as tending directly to impeach the witness Gray, but the evidence as to the declarations of defendant in the presence and hearing of the witness Gray about the latter’s ownership of the bale of cotton, and the relations defendant sustained to it, which declarations were not at the time denied or disputed by Gray, was legitimate testimony in behalf of defendant.
Another error is disclosed in defendant’s fourth bill of exceptions. “ Defendant asked the witness Gray if, while in jail, confined under an indictment for the theft of this same bale of cotton, he (the witness) did not state to Ben Brown that the bale of cotton was his and not Turney’s, and that he had raised the same on Marion Wyatt’s place?” ' An objection to this evidence on the part of the State was also sustained by the court. The evidence was legitimate, and should have gone to the jury. We can see no reason for its exclusion.
Other errors are complained of, but not deemed by us tenable. Because the court erred in refusing the introduction of the proposed testimony in the two instances above noted, the judgment is reversed and the cause remanded.
Reversed and remanded.