People v. Ehring

65 Cal. 135 | Cal. | 1884

Sharpstein, J.

—The court erred in admitting evidence of a statement made by Pinkston, the person alleged to have been robbed by the defendant, to the witness Dallas. The statement was not made in the presence of the defendant, and there is nothing in the record which shows that it was anything more than a mere narrative of a past occurrence. It was an isolated conversation held between Pinkston and the witness, some time after the events narrated had transpired, but how long after does not appear. Pinkston, when on the witness stand, did not attempt to state when, where, or by whom the alleged robbery was committed.

He testified that he had a watch at 11 A. M., and between 1 and 2 p. m. he missed it. He thought that he had been knocked down, and that the watch had been taken from him without his consent. But of that he was not positive. This was what he stated when under oath. The prosecution was permitted to prove that, when not u/nder oath, he had positively stated he had been “knocked down and robbed.” It does not appear that he then stated what he had been robbed of, or who had knocked him down and robbed him.

This illustrates very clearly the objection to the admission of such evidence. Judges and law-writers have differed as to when statements must be made in order to be admissible in evidence as part of the res gestee. But so far as we are advised, there is no reported case in which such evidence has ever been admitted under circumstances at all similar to those under which it was admitted in this case.

Judgment and order reversed.

Thornton, J., and Myrick, J., concurred.