People v. Newton
96 Mich. 586
Mich.
1893
Check Treatment
Hooker, C. J.

The respondent appeals from a conviction of rape. William O’Brien was also charged with the same offense, and had pleaded guilty. The offense was perpetrated at the residence of complainant during the *587absence of tbe family, and tbe men were in tbe house on the return of the family. O’Brien was captured and detained; the other broke away. Soon after, he came to the door, and threatened to shoot Judd Reading if he did not let his partner go. Judd stated that this man was the defendant, Newton. A Mrs. Smith was permitted to testify that a few minutes after the arrest of O’Brien, and after the other man had escaped, but before his return, O’Brien said:

“Mrs. Reading, how came I here? Oh, I know; Lewis Newton brought me here.’’

The tendency of this testimony was to establish Newton’s identity. It was the statement of a confessed criminal that another had brought him to the place where the ■offense was committed. It was hearsay, and we think was not admissible upon the theory that it was a part of the res gestee.

The judgment must be set aside, and a new trial ordered.

The other Justices concurred.