THE PEOPLE v. SIMONDS, 19 Cal. 275

Baldwin, J. delivered the opinion of the Court Cope, J. concurring. We think the Court below erred in admitting the declarations of the "prisoner’s wife, as testified to by the witness, Mrs. Hilliard. It was perhaps competent to prove by the witness that the wife was in possession of the money, and its appearance, and what she did with it; for these facts are a part of the general transaction, and have some bearing upon the question of the taking and possession by the defendant; but we cannot perceive that it was proper to admit the declaration of the wife that her husband had given her the money.

If a third person had made this declaration, no doubt can exist that it would have been mere hearsay and inadmissible ; and we cannot see the difference in principle between the wife’s declaration and that of any one else. It is true that it has been sometimes said declarations of a party at the time of doing

an act, which is legal evidence, are admissible as parts, of the res gestee, but this rule does not apply to admit, as against third persons, declarations of a past fact, having the - effect of criminating the latter. If so, any felon caught with stolen property might criminate an innocent man, by declaring that he obtained the property from such person, or that such third person was associated with the declarant in the criminal fact. We are inclined to think the other points are not well taken, but it is not necessary to pass upon them specifically. Judgment reversed and cause remanded.