The opinion of the Court was delivered by
Watkins, J.This case was before us at Monroe in Juue last. 38 Ann. 632.
The accused was indicted and tiled under R. S., Sec. 791, on the ,pharge of wilfully, feloniously and of malice aforethought, shooting Frank Key, with intent, then and there, to kill and murder him, etc.
*471The jury found him guilty of “ shooting with attempt to Mil.”
On defendant’s motion in arrest of judgment, assigning that the one found by the jury was an illegal verdict, the trial judge arrested judgment, and set it aside and remanded the accused to await a new trial.
Claiming that the effect of the arrest, ol' judgment and setting the verdict aside was to terminate the prosecution under the indictment, the accused brought up the case, and we held the ruling of the trial judge correct, and remanded it for retrial.
r.
On the second trial, in the court below, the objection was urged that the accused cannot again he put upon trial under same indictment, because lis has been ouce in jeopardy, as he was once arraigned thereunder and tried by a jury, and said jury agreed to a verdict, and lie eanuot be placed twice in jeopardy.
This motion and objection .were, by the trial judge, overruled on the ground that the finding of the jury was equivalent to a mistrial, and because there “ is no such crime denounced by the statute of the State ” as the one of which he was found guilty.
In our former opinion we said : “ Defendant moved for a new trial on several grounds, and also filed amotion in arrest of judgment, on the ground that the verdict is not responsive to the indictment and the variance is fatal, and the accused should he finally discharged, as in effect, acquitted. The two motions were tried together, and judgment was rendered,” etc.
The constitutional provision relied upon is “ that no person nlia.ll he held to answer for a capital crime, unless on a presentment or indiclment by a grand jury; * * * nor shall any person he twice put in jeopardy of life or liberty for the same offense, except on his own application for a new trial, or when there is a mistrial, or a motion in arrest of judgment, is sustained.” Const., Art. 5.
All of its conditions have been fulfilled. The purport of our previous opinion is that the accused was not, in effect, acquitted, as was at that time contended. The former appeal was only entertained upon appellant’s theory, that the effect of the judgment, on motion in arrest, was to terminate the prosecution. Otherwise the appeal would have been dismissed.
'Die judge’s ruling was correct.
ri.
Another bill ivas reserved by the accused 1,o the admission of the declarations of Nancv Key to Allen Webb, as part of the res qestce.
*472The trial judge assigns the following reasons for admitting the evidence:
“The evidence shows that Allen Webb lived about one hundred or one hundred and fifty yards from the place of the shooting; heard the report of the gun, and the outcry of Nancy Key; and went immediately to the place in a run, making a very short space of time between the firing and the declaration, and what any one said at that time was a part of the res gestee."
The particular objection urged to the reception of the testimony offered on the part of the State, was, that Nancy Key was a third person — a mere observer — and not one of the participants in the transaction; and that her statements are hearsay.
This objection is supported by authority.
Dr. Wharton says: “' It is agreed on all sides that narrations of a transaction are inadmissible, unless admissions by the party charged, etc.” Wharton, Crim. Law, sec. 262.
Again: “ The distinguishing feature of declarations of this class is that they should be the necessary incident of the litigated a.ct. e *
“Under the rule before us, evidence in homicide trials has been received of the exclamations of the defendant at the time of the attack, etc. * * * But the comments and criticisms of observers cannot be introduced as res gestee.
“ Such persons must be called in court and examined as to what they saw. Their statements made at the time are hearsay. Sec. 263.
Roscoe’s Crim. Ev., p. 23: “In this case it is not the relation of third persons unconnected with the fact which is received, but the declarations of the parties to the facts themselves, or of others connected with them in the transaction, which are admitted for the purpose of illustrating its peculiar character and circumstances.”
Bishop announces the exception to the rule thus:
“ But while the declarations and actions of persons, neither on tried nor injured by defendant's acts, may be admissible to do so, such persons must be otherwise connected ivith the transactions them as mere loolcers-on." 1 Bishop Crim. Ev. Sec. 1087; 38 Ann. 66, State vs. Frank Moore.
The defendant’s objection to the declarations made by Nancy Key to Allen Webb, a witness for the State, should have been sustained and the evidence rejected. It may have exercised a prejudicial effect *473upon the minds of the jury and against the accused. He is entitled to a new trial.
It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment and sentence thereon based be aunulled, and the cause remanded for further proceedings according' to law.