The opinion of the Court was delivered by
Berudez, J.The defendant relies on several bills of exceptions for the reversal of the verdict and sentence against her, on a charge of larceny.
Tt appears that she offered to prove by different witnesses, the declarations made by herself, before accusation, previous to, and at the time of arrest, to repel the charge of a felonious taking and carrying away, and that the District Judge declined to hear argument on the subject and to permit the evidence.
However true it may be that self-serving declarations may not always form part of the res gestee, it seems to be well established that an accused has the right to show that, having the article said to have been stolen in his possession, he has avowed, before being questioned concerning it, having taken it by mistake, or from his own negligence. Green-leaf 3, § 157.
“It is the doctrine of reason, sustained by some of the cases, and not apparently contradicted by any, in a way requiring notice, that when stolen property is found upon one, or in his possession, attention should be given to his own explanation then made of how he came by .it, and this explanation may be produced in evidence to the jury, in his behalf, as well as against him.” 2 Bishop on Grim. Prac., § 746; Wharton, Crim. Evidence, Nos. (191, 7(11; Waterman, Cr. Digest, pp. 381-2, Nos. 90, 92, 99 and p. 411, No. 443.
The doctrine in this State rests upon that princiide. State vs. Thomas, 30 Ann, 600; State vs. Delwood, 33 Ann. 1229; State vs. Chrétien, 35 Ann. 1031; State vs. Edwards, 34 Ann. 1012.
It- appears that the accused proposed to show by three, witnesses, that before the arrest she had showed them the article, telling them it belonged to a certain party; that she had taken it from the child; that she had inadvertently and unintentionally brought it away; that she intended to return it the next day, and that she repeated the same thing to the constable' who arrested her, at the time, of the arrest.
*96She claims that, had said evidence been admitted, it would have repelled all idea of a “felonious ” taking and established her innocence.
It is not, for this court, nor was it for the lower court, to say, what effect tlie evidence, if received, would have produced on the jury.
It is clear that, without, a felonwus taking there can be no larceny, and that., had the testimony been admitted and satisiied the jury of the absence of a felonious intent, and taking, it. would have been their duty to acquit the accused.
it is, therefore, considere,d that the evidence refused ou^bt to have been received.
It is, accordingly, ordered and decreed that the verdict, and judgment appealed from he set aside, annulled and reversed, and that this case be remanded to the lower court, with instructions to hear the evidence proposed, and further to proceed according to law.