On the Merits.
I.
The accused challenged the array of jurors and moved, seasonably, to quash and set aside the venire, on the ground that two of the jury commissioners, who participated in the drawing of the jury, were disqualified from acting as jury commissioners, because one of them was, at the time, holding the offices of member of the parish school board and tax assessor for the parish, and the other was holding the office of member of the police jury. Several questions, delicate and not free from difficulty, are presented on the briefs, touching the character of the offices referred to in Art. 129 of the Constitution ; but we find it unnecessary to decide them.
Conceding, for the sake of argument merely, and without so deciding, that the office of jury commissioner in the country parishes, and *1231also that the other offices alleged to have been held by the parties here, were all “offices” within the meaning of the constitutional provision and incapable of being simultaneously held by the same person, — we yet find one reason assigned' by the judge a quo for overruling the motion to quash the venire, which must prevail, viz.: “If the offices are inconsistent, the parties, by qualifying as commissioners, vacated their former offices.”
The record not showing the contrary, we must accept this statement of the judge as establishing that the appointment and qualification of these parties, as jury commissioners, were subsequent to their appointment and qualification as to the other offices. It has been twice decided that the acceptance of an office incompatible with one already held, vacates the latter. State vs. Newhouse, 29 An. 824; State vs. Arata, 32 An. 193. The last mentioned case is identical with the present one.
II.
Defendant had been prosecuted, jointly with one Handy Jenkins, for larceny of a hog. Upon a severance, Jenkins had been separately tried and convicted. On the present trial of this defendant, he offered to prove by Isaac Harrison, a competent witness, that, “ on the same day and immediately preceding the alleged taking, Handy Jenkins, in the presence of said witness, asked defendant to go and help him to get his (Handy Jenkins’) hog, and that defendant immediately went, under the impression that he was assisting Handy Jenkins to do what he had a right to do.” The court rejected this evidence for the reasons assigned that Jenkins having been convicted of an infamous crime, evidence from him, or statements by him, were inadmissible, and that being himself an incompetent witness and unworthy of belief, his statements could not be received.
We think the court erred in rejecting this evidence. The statement offered to be proved lacks no element necessary to constitute it a part of the res gestae; and it seems to us to be legitimate evidence for the purpose of disproving the animus furandi. The competency of Jenkins as a witness and his credibility have no pertinency to the question. The purpose of the evidence was not to establish the truth of Jenkins’ statement, but merely to prove the fact that the statement was made to witness, and that, whether true or false, defendant, believing it to be true, acted upon it. We, therefore, think that defendant’s exception to the rejection of the testimony was well taken and the case must be remanded on this ground.
It is, therefore, ordered, adjudged and decreed that the judgment and sentence be annulled and set aside, and that this case be remanded to the lower court for further proceedings according to law.