delivered the opinion of the court.
The testimony upon which the conviction in this case for the larceny charged in the bill of indictment, was obtained by the State, is illegal,. The Circuit Judge, in permitting evidence of what Dixon H. Rushing had charged the prisoner with, in relation to the offence, to go to the jury, was laboring under a mistaken apprehension as to the rule of evidence as applicable to such a case.
The law upon this subject is this; if a man be charged with the commission of an offence, and he neither admit or deny it, if facts in relation thereto, of which, if true, he must be cognisant, be charged in his presence and hearing to exist, and he do not controvert them, proof of such charge having been made, is legitimate. But if he deny the charge of his guilt, if he controvert the truth of the facts, proof of such charges cannot be heard, because they are mere charges unsupported by oath, and lack that confirmation, which is supposed to be given to them by the implied admission of the person charged, in not denying them.
In the case under consideration, the charges and statements made against the prisoner by Dixon H. Rushing, were always peremptorily denied by him, and he invariably insisted that the money found in his possession and claimed by Rushing was his own, and there is nothing to controvert his claim, except the uncorroborated charge of Rushing
Let the judgment be reversed and the case remanded.