| Mo. | Oct 15, 1860
delivered the opinion of the court.
This judgment will be reversed on account of the admission of illegal evidence.
The indictment is one against a father for the unnatural crime of murdering his child, a boy about eight years old. There was evidence that the defendant displayed great fondness for the child, frequently bringing him presents of candy and toys, and making him say his -prayers every night on retiring to bed; but there was also proof that he was in the habit of frequently whipping him, sometimes in a brutal manner and with a horsewhip. The defendant was. addicted to intoxication.
In answer to a question propounded by the State to a witness, who spoke of observing the boy in the field two days before his death with a swollen face, as to the cause of this, the answer was, “ I asked the child, and he said papa did it.’ ” The question and answer were objected to, but the evidence was admitted.
The declaration of the child as to the author of the injuries he had received is not evidence against the defendant. It was no part of the res gesta. It did not occur at the time the injury was inflicted. Nor was it any explanation of the nature of the injury. It was a simple declaration that I his father had occasioned it. If it had been made in articulo
. The judgment is reversed and the cause remanded for a flew trial.