dissenting.
Defendant has cited two assignments of error, each of which presents a sufficient ground for reversal. First, at trial, and over objection on the grounds of hearsay, Russel Edmonds was permitted to testify to out-of-court statements allegedly made by Joe Lyda. These statements were to the effect that the paper bag allegedly sold to the defendant con*39tained “* * * some twigs of stems and seeds from * * * the * * * last purchase of Ms marijuana * '* The admission into evidence of the testimony was prejudicial error and grounds for reversal.
State v. Christensen, 3 Or App 442, 444-5, 474 P2d 782 (1970), presented a situation almost identical with that of the ease at bar. In that ease the hearsay in question concerned testimony by an undercover policeman as to what the declarant Randall Kauffman had said. Kauffman had driven with the policeman to meet defendant. At trial the officer testified:
«« >::< *
“ ‘THE WITNESS: Randy told me to pull up beside this, and he pointed up to — he said, “Pull up there. I can get some marijuana here.” ’
Defendant objected to this testimony as hearsay and assigns as error the court’s refusal to exclude it.
“The state contends (1) that the statement is not hearsay because it was offered to show circumstantially the state of mind of the declarant, and (2) if it is hearsay it is admissible under the state-of-mind exception to the hearsay rule. These contentions are erroneous. This statement constitutes hearsay. It is an out-of-court assertion being used in court to prove the truth of the matter asserted. See State v. Randolph, 251 Or 45, 444 P2d 545 (1968); State v. Crawley, 242 Or 601, 609, 410 P2d 1012 (1966); State v. Kendrick, 239 Or 512, 515, 398 P2d 471 (1965). The declarant Kauffman’s state of mind is not in issue here. The mere fact that this statement incidentally indicated Kauffman’s intention or desire to buy marihuana does not automatically make the statement admissible. The significance of this statement is that it would allow the jury to infer substantively not only that Kauffman did in fact buy marihuana from defendant, but also that he had done so before, sug*40gesting thereby that defendant was a ‘seller.’ The hearsay rule was designed to preclude this type of testimony.”
Likewise, Lyda’s statement would allow the jury to infer substantively not only that there was marihuana in the bag, but also that the defendant was a “buyer” of marihuana.
The only distinction between Christensen and the case at bar is that the defendant was not present when the witness made his statement in Christensen and the defendant was present when Lyda allegedly spoke in the case at bar. Statements made by others are no less hearsay when made in the presence of the defendant, and are inadmissible unless coming within a recognized exception to the hearsay rule, such as an accusatory statement. People v. McKnight, 87 Cal App2d 89, 196 P2d 104 (1948). ORS 41.900 states that:
“Evidence may be given of the following facts:
"* * * * *
“(3) A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto.
"* * * * *."
In Swain v. Oregon Motor Stages, 160 Or 1, 82 P2d 1084, 1085 (1938), this statute (then § 9-226, Oregon Code 1930) was interpreted to mean that a declarant’s statements made in the presence of the defendant were admissible if the defendant possessed an opportunity and a motive to deny the statement if it were deemed to be incorrect. See also Brown v. Bryant, 244 Or 321, 324, 417 P2d 1002 (1966); Patty v. Salem Flouring Mills Co., 53 Or 350, 353, 96 P 1106, 98 P 521, 100 P 298 (1909).
*41The statement allegedly made "by Lyda would not be one calling for denial by defendant. The “in presence” exception to the hearsay rule authorized by ORS 41.900 (3) would not apply in this case and Christensen should control the question of the statement’s admissibility.
The state also contends that the evidence is admissible under ORS 41.900 (7) and ORS 41.870. But as defendant points out in his brief, ORS 41.870, which reads:
“Where the declaration, act or omission forms part of a transaction which is itself the fact in dispute, or evidence of the fact, such declaration, act or omission is evidence as part of the transaction * *
is merely
“* * >::= a legislative definition of ‘res gestae.’ Humphrey v. Chilcat Canning Co., 20 Or 209, 213, 25 P. 389 (1890). ‘Ees gestae’ is an exception to the hearsay rule relating to the admissibility of spontaneous declarations which are considered to have a special reliability. The basis for the rule is stated in 29 Am Jur 2d Evidence section 708:
“ ‘The basis for the admission of declarations under the res gestae rule is the well-founded belief that statements made instinctively at the time of a specific transaction or event, without the opportunity for formulation of statement favorable to one’s own cause, are likely to cast important light upon the matter in issue; as to such statements, the law creates a presumption of their truthfulness.’ Accord, Raymond v. Shell Oil Co., 165 Or 11, 22, 103 P.2d 745 (1940); State v. Hutchison, 222 Or 533, 537, 353 P.2d 1047 (1960).
"* * * * *."
The statements of Lyda were not the type of *42statement contemplated by the “res gestae” exception. They were the statements of a salesman intent on making a sale and as such, would not carry a presumption that they were spontaneous or uncontrived. To the contrary, they would be self-serving.
The majority opinion has taken the position that the testimony by Edmonds as to what Lyda said was admissible not as hearsay, but “* * * as a circumstance tending, together with those described above, to establish defendant’s belief that it was marihuana and his intent to buy it when, simultaneously with his examining what was in it, he paid $1 for the paper sack and its contents * * (Emphasis supplied.) But, “ [declarations tending to show the state of mind of another are hearsay and inadmissible,” 31 A CJS 668, 670, Evidence § 255. In Herrmann v. Newark Morning Ledger Co., 48 NJ Super 420, 449, 138 A2d 61, 77, adhered to 49 NJ Super 551, 140 A2d 529 (1958), the court said:
“® * * Also incompetent was testimony by plaintiff that an anonymous caller on the phone told his wife ‘about that husband of yours, a Communist.’ The court denied a motion to strike it. This was hearsay not within the exception. It did not relate to the declarant’s (wife’s) state of mind concerning the effect of the article * *
Likewise, here the statement by Lyda does not relate to the defendant’s state of mind or intent but is only a statement of what Lyda alleged was in the bag. As such the statement would be inadmissible because it would be incompetent to prove defendant’s state of mind or intent.
Prejudice by admission of the objected-to hearsay is evident by a reading of the record.
*43It cannot be assumed that the trial judge considered the testimony of Lyda for any purpose other than that for which it was submitted by the state, namely, to prove that there was marihuana in the bag.
The statement by Lyda was the only direct evidence that there was marihuana in the bag. Because it was accepted by the trial judge for that purpose, I cannot find that the erroneous admission of the hearsay had “* * * little, if any, likelihood of having changed the result of the trial,’ * * State v. McLean, 255 Or 464, 479, 468 P2d 521 (1970). I find therefore that the error in admitting the hearsay was prejudicial and grounds for reversal.
Defendant’s final assignment of error contended that the court erred in failing to grant a judgment of acquittal on the grounds that the state had failed to prove possession of a usable quantity of marihuana.
At trial, the state produced neither the paper bag purchased by the defendant nor the marihuana supposedly contained in the bag. The two witnesses produced by the state who were present at the time that the defendant allegedly purchased the bag both testified that they never saw what was in the bag. Having faded to produce the alleged contraband or any person who saw it, the state attempted to prove that the defendant had possessed marihuana by three other methods.
First, they sought to introduce the statement allegedly made by Joe Lyda for the purpose of proving the truth of that statement. As discussed above, there is no conceivable exception to the hearsay rule that would permit the introduction of that statement for that purpose.
*44Second, the state offered the testimony of Rnssel Edmonds, the informer, who testified that Joe Lyda took a cigarette package out of the bag defendant is alleged to have purchased. The evidence showed that the cigarette package contained 12 hand-rolled marihuana cigarettes. The evidence also showed that 11 were sold to people other than the defendant and that the twelfth was kept by Lyda. Edmonds testified that the cigarettes were loosely packed. By this statement the state sought to imply that some of the marihuana in the cigarette had fallen into the bag. However, there was no evidence produced to the effect that any of the marihuana had fallen into the bag.
Finally, Edmonds testified that the defendant told him that he had taken the “material” in the bag and chopped it up and sold it for five dollars. At no time did the witness Edmonds explain what was meant by the word “material,” save the hearsay statements of Lyda.
In conclusion then the state “proved” its case by (1) not producing the marihuana defendant was alleged to have possessed; (2) not producing the bag in which it was allegedly contained; (3) not producing a single witness who could testify that he had seen what was in the bag; (4) not producing a single witness who could testify that any marihuana fell into the bag; (5) producing a hearsay statement which was made at a time when the declarant was trying to make a sale and which would be inadmissible under' any hearsay exception, to prove the truth of the statement; and (6) offering defendant’s admission that he had cut up and sold the “material.”
In State v. Dennis, 177 Or 73, 77, 159 P2d 838, *45161 P2d 670 (1945), the court set down the classic statement of the sufficiency of circumstantial evidence :
“* * * The fact that a crime has been committed (the corpus delicti), and that it was done by the defendant, may be lawfully established by circumstantial evidence alone * * *. The evidence upon which the State relies for conviction must not merely coincide with, render probable, and be consistent with, the guilt of the accused, but it must be inconsistent with any reasonable theory of his innocence and incapable of explanation upon any other rational hypothesis than that of guilt * * #
More recently, in State v. Christenson, 5 Or App 335, 339, 483 P2d 84, 484 P2d 853, Sup Ct review denied (1971), this court stated that:
“* * ® The jury is entrusted with the responsibility of deciding whether every element [of a crime] has been proved beyond a reasonable doubt, and it is entitled to draw all reasonable inferences capable of being drawn from the circumstantial evidence in reaching that decision * * *. Nevertheless, it is the duty of the court, when proper challenge has been made, to review the evidence and determine
“ ‘ “* * * whether the inferences that can be drawn are sufficiently reasonable * * ’ ”
The admissible evidence produced by the state clearly would not be the basis for any reasonable inference that marihuana was in the bag sold to defendant. The state having failed to produce legal evidence of possession of a narcotic drug, the trial court erred when it failed to grant defendant’s motion for acquittal. The judgment should have been reversed.
*46Bruce E. Smith and Riddlesbarger, Pederson, Young & Horn, Eugene, for petition. No appearance contra.