(dissenting.) — I am unable to concur with my brethren in either of the points presented by this case. In admitting evidence that property stolen from persons other than the party mentioned in the indictment was found in possession of the accused, the court, I think, erred. The evidence seems exceptionable on several grounds. If ■offered to show the accused to be dishonest, and thus assail his character, it was clearly inadmissible, for the case was not in a situation to make evidence to that end proper. The prosecution could not make the issue of character, and the accused had not made it; until he had given evidence to sustain his character the prosecution could not assail it.
And where the issue of character is tendered by the accused, it can only be met by evidence of a general nature. *340Evidence of a solitary act like this is never admissible, even when proper evidence against character is so. No person can be supposed to come prepared for trial on a charge other than that embraced in the indictment. A general bad reputation is admissible when the accused has chosen to assert and give evidence of a good character, and thus tender an issue on that point; but in this case he had not done so; the evidence raised was not competent in either of these aspects.
But it was improper for a reason more palpable than either of them. In itself it did not show either a general bad character, or even a single act inconsistent with a good one; for it did not show nor attempt to show that the accused, having in his possession goods which had been stolen, had any knowledge of the manner in which they had been obtained. It failed therefore to connect him with the act by which they had been obtained. '.It seems to have been offered as evidence of guilty knowledge of the defendant as to the act charged in the indictment. To render evidence of another act proper at all for this purpose, it must be assumed that proof of guilty knowledge in one case is evidence of it in another, which is I think entirely inadmissible. But the evidence did not show the guilty knowledge even in that case to which it related, and stopped short of the point at which on any theory it could have been deemed admissible. The mere having in his possession goods which at some previous time had been the subject of a larceny of which he had no knowledge, was not at all .inconsistent with his entire innocence in respect to them, and, admitting the evidence given to have been true, it does not show him guilty of any impropriety in respect to them. (Arch. Cr. Pr. and Pl., 480, ed. with Waterman’s notes.)
The indictment charges the defendant with having received one saddle, one bridle and some bits, goods stolen from one Segee, knowing them to have been stolen. On the trial, it appeared that the accused kept a feed store at 507,. and a stable at 505 Houston-street.
*341The prosecution proved that the stolen property was found on the premises of the accused.
The accused showed that it was brought there by three men in his -absence, and the circumstances under which it was left there with bis clerk or agent ^ and offered to show what was said on the subject between the men bringing it and his agent at the time. To this evidence the prosecution objected and the court excluded it.
The defence then put the question: “ At the time these men left those things there, as you have stated, did they •state for what purpose they wished to leave them?”
This question was also objected to by the prosecution and excluded by the court.
This evidence seems to me entirely competent.' The declarations of the parties to the transaction at the time it took place, on the subject of it, and accompanying their acts at the time, would seem to be quite competent and likely to throw light upon it.
The crime charged is receiving with the guilty knowledge. The receiving is proved. There is no direct evidence of the scienter. The jury are asked to infer it. The circumstances of the receipt, the facts attending it, are shown. The statements or sayings of the parties to the act, respecting it, at the time it was done and accompanying it, are excluded, I can perceive no good reason for excluding them. Nothing could be more likely to unfold the nature of the act or give a character to it than those declarations. They are a part of the res gestee, and as such admissible.
The facts and circumstances attending the receipt are admitted in evidence, and the declarations of the parties accompanying those facts must be, or the case is left without evidence in its nature, as likely to explain and give a character to them as any which can well be imagined. They should be admitted, not as evidence of the truth of the facts stated, but as evidence that such statements were made, *342without regard to the truth or falsity of them. (1 Greenl. Ev., § 110; Phil. Ev., 194, 5; Rosc. Cr. Ev., 25.)
The only reason urged against this evidence by the prosecution is, that it is hearsay, which might with equal propriety be urged against the testimony to prove a contract by an ear witness or one’s declaration accompanying an act, explanatory. What better evidence can there be of the intent of parties to a transaction than their sayings or declarations in respect to it at the time they perform the acts relative to it?
The court erred in excluding this evidence, I think j and' for each of the above reasons I am constrained to the opinion that a new trial should be ordered.
Proceedings affirmed, (a)
At a subsequent general term in the same district, counsel in another case declining to argue a point similar to the one in this, relative to the declarations of parties having property which proved to be stolen, on the ground that the question was settled in this district, Mr. Justice Roosevelt, presiding, said that the case was one of much doubt, and had been decided by a divided court, and he for one preferred to consider the question an open one.