delivered the opinion of the court.
The indictment charges that the term of office of the defendant expired on the first Monday of January, 1880, and for this reason he could not be convicted of an offence created by the Code of 1880, which did not go into operation until November first of that year; but the indictment also included an offence, under Code 1871, §§ 262, 2890, which was in operation during the official term of the defendant. These provisions were also incorporated in the Code of 1880, and have therefore been continuously in operation. The first named *233section is as follows: “ It shall be the duty of the county treasurer to receive and keep the moneys of the county, to disburse the same agreeably to law, and to take receipts for all money he shall so disburse ; he shall beep regular accounts of the receipts and expenditures of the funds of the county, and of all debts due to or from it, and shall direct prosecutions, according to law, for all debts that are or shall be due the county; he shall faithfully observe and discharge all the duties that may from time to time be required of him ; and at the expiration of his office he shall deliver to his successor all money, securities, property, books, and papers belonging to the county, or appertaining to his said office.” Section 2890 makes it a misdemeanor for any “ person, being sheriff, clerk of any court, coroner, constable, assessor, or collector of taxes, or holding any county office whatever,” to wilfully neglect or refuse to perform any of the duties required of him by law, or to violate his duty in any respect.
It is argued by the appellant’s counsel that the latter section applies only to persons “ being officers,” and that as appellant’s neglect or refusal occurred after the expiration of his term, he is not within the terms of the statute. The duty of the county treasurer to turn over to his successor in office the books, &c., pertaining to his office, is by the first section quoted made one of the official duties of such officer, and the other section declares the penalty for a neglect or refusal to perform the duty. The offence was completed when at the time of the expiration of his term he neglected to perform this duty, and his continued refusal cannot have the effect of relieving him from the penalty of his neglect of official duty. His subsequent admissions may be looked to for the purpose of throwing light upon his previous failure, neglect, or refusal, as, for instance, to show that the refusal was wilful; but they cannot be invoked by him for the purpose of showing that it was accidental, or for any other purpose, for that would be to permit him to manufacture testimony for his defence.
The court- did not err in refusing to permit the defendant to testify as to the declarations made by him to Sharp, his successor in office, at the time he turned over to him the other books pertaining to the office, because they were not confes*234sions or admissions made by him in relation to a consummated act. They were parts of the thing then being done, — verbal acts of the defendant, which explained or gave color to the other simultaneous occurrences, — and were therefore admissible in evidence as parts o.f the res gestee, and not as confessions. Head v. State, 44 Miss. 731. Section 1603 of the Code of 1880 provides, that “ when admissions or confessions of the accused are admitted as evidence, he may testify as to them, but he shall not be competent as a witness in the inquiry as to the admissibility of his admissions or confessions.” It is evident that the statute contemplates only such confessions and admissions as are receivable in evidence only when made by the accused under such circumstances as to show that they were freely and voluntarily made, for the admissions and confessions as to which he is competent to testify are those as to the admissibility of which he is expressly declared to be an incompetent witness. When, therefore, the declaration of the accused, which is introduced against him, is a part of the res gestee, and not an acknowledgment or confession of a pre-existent crime or act, the accused is not by the statute made a competent witness. The declarations made by the appellant to Sharp on March 20, 1881, and those made in the presence of the board of supervisors in March, which were testified to by the witness Granberry, were admissions or confessions. They were introduced by the State for the purpose of proving that the accused had previously refused and neglected to deliver the books of the treasurer’s office to his successor; they were acknowledgments by the accused of one of the facts which was an element of the offence. As to these admissions he was a competent witness, and because he was refused the right of testifying thereto, the judgment is reversed and a new trial awarded.
Judgment accordingly.