The appellant assigns as errors the admission of the evidence of witnesses Booth, Mattison, and Holland, as to what the complaining witness told them about defendant’s taking the money, and the giving of the instructions by the court as shown and set out in the statement.-
*423The action of the court in admitting the objectionable evidence, and in giving the instructions complained of, is só palpably wrong, in the opinion of the Attorney General, that he admits in his'brief that the . case should be reversed and remanded for new trial. We would therefore reverse and remand the case on the Attorney General’s confession of error, without comment, but for the fact that the case will perhaps be tried again.
That the evidence of the witnesses as to what Jennie Wilson told them about the defendant’s taking the money mentioned in the information was hearsay, cannot be disputed. Nor is it anywhere pretended that these statements were made in the presence of the defendant. The statements were made by the complaining witness to the other witnesses in the city of Butte when it is conceded that the defendant was out of the city. It is not improbable that the complaining witness told her grievances and version of the case to many other people, and, if such statements are competent evidence to establish the defendant’s guilt, the prosecution might have made a stronger case by putting such persons on the witness stand. And this objectionable evidence was all admitted in rebuttal. Its admission was such palpably prejudicial error that we are at a loss to see upon what theory the prosecuting attorney could have offered it, or the court admitted it.
It only requires a casual reading of the instructions complained of to see that they are irreconcilably inconsistent and conflicting. The instruction given at the instance of the state tells the jury, substantially, that if the defendant took the money, intending to return it, but did not do so after demand, the fact that he intended to return it when he took it, or when it was delivered to him by Jennie Wilson, is no defense, and that the burden was on the defendant to show that he had no guilty intent. The instructions given at the instance of the defendant make the intent the essence of the crime, and require the state to prove a guilty intent; telling the jury, in effect, that, although the defendant appropriated the money, yet, if he did it under an honest claim of right or *424title, he was not guilty, as charged, of larceny. These instructions are so conflicting that no jury could reconcile them. And the additional instruction given bv the court at the request of the jury did not relieve or remedy the conflict. The instruction given on the part of the state, placing the burden of proving that he had no guilty intent in disposing of the money in question upon the defendant, was absolutely erroneous. It devolved upon the state to prove beyond a reasonable doubt that the defendant was the bailee of the money, and that he unlawfully and feloniously appropriated it to his own use. The defendant was not required to- prove his innocence.
The errors in this case are so glaring that we commend the action of the Attorney General in confessing them on an inspection of the record. The action of the court, especially in admitting the evidence complained of, would be ridiculous, but for the expense imposed upon the taxpayers by such seemingly farcical administration of the laws of the state.
■ The judgment appealed from is reversed, and the case remanded for new trial.
Reversed and Remanded.
Pigott, J., concurs. Hunt, J., not sitting.