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.
2. 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 *217good. — Norris v. The State, 50 Ala. 126; Danner v. The State, in manuscript.
3. 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.