ed the property from such person, or that such third person was associated with the declarant in the criminal fact." In State v. Jaeger, 66 Mo. 173, 180, the court say: "Mrs. Wall was allowed, against the objection of the defendant, to testify in regard to his wife having called on her the morning following the alleged assault, and, in the absence of defendant, making proposals to have 'the matter hushed up.' Upon what principle or rule of evidence such statements were admitted, neither the hornbooks of the profession nor the reports of adjudged cases furnish either illustration or example." In Maines v. State, 23 Tex. App. 568, 5 S. W. 123, in a perjury case, it was held error for the trial court to permit certain witnesses to testify to conversations between themselves and another concerning the guilt of the defendant in a larceny case, wherein the perjury was alleged to have been committed, in which conversation neither of the defendants in the larceny and perjury cases was present, and the court said: "Such testimony was clearly hearsay, and the conversation and agreement were 'res inter alios acta,' and in no manner binding either upon Wyers [the defendant in the larceny case] or this defendant."

In a criminal prosecution for larceny, where the prosecution was forced to rely wholly upon circumstantial evidence, it was held not to be error to prove the accompanying acts and declarations of a third person, for the purpose of showing that the larceny was actually committed, and that such third person was one of the guilty parties; but this was upon the ground that the acts and declarations admitted in evidence did not tend in the least to implicate the defendant in the commission of the offense, and that the transactions and declarations of the third party were part of the res gestæ, and did not show nor tend to show defendant's connection with the offense. State v. Peterson, 38 Kan. 204, 16 Pac. 263. Extrajudicial statements of third persons cannot be proved by hearsay, unless such statements were part of the res gestæ. Carlton v. People, 150 Ill. 181, 189, 37 N. E. 244. Admissions cannot be used in evidence, except against the person making them, in an issue between him and another person, wherein the truth of the admission is involved, or against his privies claiming through him; and confessions are incompetent evidence except against a person charged with crime, or, in a proper state of case, against his confederates. Davis v. Com., 95 Ky. 19, 23 S. W. 585. It is not competent for the state to prove the declarations of third persons in reference to matters involved in the trial of the cause, unless the defendants were present at the time the declarations were made. Britton v. State, 4 Cold. 173. Where the declarations of a party offered in evidence are merely narrative of a past occurrence, they cannot be received as proof of the existence of such ocv.44P.no.1-5

currence.

They must be concomitant with the principal act, and so connected with it as to be regarded as the mere result of the coexisting motives, in order to form a criterion for directing the judgment which is to be formed upon the whole conduct. A declaration made by confederates of a party, in his absence, and after the fact, is not competent evidence against him. Riggs v. State, 6 Cold. 517. The confessions of an accomplice are, generally, not admissible against others implicated. Ake v. State, 30 Tex. 466; Spencer v. State, 31 Tex. 64; Com. v. Thompson, 99 Mass. 444; State v. Ah Tom, 8 Nev. 213. In a prosecution for concealing a horse thief, it is not competent for the prosecutor to prove the confessions of the alleged thief, although in the presence of the defendant, to establish the fact that the horse was stolen. Morrison v. State, 5 Ohio, 438. The rule is clear that one accused of crime cannot prove declarations, out of court, of another person to the effect that the latter committed the offense laid, but must prove what acts were committed by such person, and not his admissions. State v. Haynes, 71 N. C. 79; Fletcher v. State, 24 Or. 295, 33 Pac. 575; Greenfield v. People, 85 N. Y. 76, and cases cited. The rule relating to admissions by third persons is well stated by Mr. Bishop: "A third person's declarations, as that he committed the crime in question, will not, in the ordinary case, be admitted for or against the defendant. And it is not otherwise though the declarant is the defendant's husband or wife, or for civil purposes his agent. But, on its being shown that one or more persons were acting in concert with the defendant about the thing in question, with a common object, declarations during its progress by any one of the others, whether present or absent, may be given in evidence against the defendant; yet not declarations after the transaction is ended." 1 Bish. New Cr. Proc. 1248.

It is contended on behalf of the state that all facts necessary to the explanation of the evidence are admissible, and that, on a trial for perjury alleged to have been committed on the trial of an assault, all the evidence that was admissible on the trial of the indictment for the assault is admissible, if relevant, on the trial for perjury. 2 Whart. Cr. Law (8th Ed.) 1326, citing Reg. v. Harrison, 9 Cox, Cr. Cas. 503. We quite agree with this proposition, but testimony such as the declarations of the guilty party, made after the assault, and not in the presence of the one accused of perjury, is irrelevant and hearsay, as against the accused. Such testimony is not a part of the res gesta, and does not tend to disprove the facts testified to by eyewitnesses. What is to be considered as part of the res gestæ, and what not, is a question much disputed in the books. It would be an endless task to present the authorities and endeavor to reconcile them, and it is not necessary to do so in this case. It

is obvious that the declarations of Chandler after the mêlée, implicating himself as the assailant of Policeman Ingalls, would be admissible in a case against him, not as part of the res gestæ, but as his confessions or selfdisserving declarations. They were merely narratives of past events, and constitute no part of the res gestæ, and were not said under the immediate spur of the transaction. They were not concomitant with the assault, and so connected with it as to be considered a result or consequence of coexisting motives. The same objections are pertinent to the evidence relating to Chandler's flight the day after the assault, and his exclamations after he had retired at the ranch of a witness. If these exclamations, indicating fear of pursuit, were uttered in sleep, they were inadmissible against him. People v. Robinson, 19 Cal. 41. But, if he were conscious at the time, they were not part of the res gestæ; neither were the circumstances of his flight. Such evidence is received, not as part of the res gestæ of the criminal act itself, but as indicative of a guilty mind. People v. Stanley, 47 Cal. 113, 118, citing Rosc. Cr. Ev. 18. At any rate, it is difficult to see how these matters were pertinent or material to the inquiry whether or not Reavis, the plaintiff in error, had sworn falsely about the circumstances of the assault. It will not do to say that all of this testimony, relating to Chandler's admissions and actions after the assault was committed, was merely irrelevant, and consequently did the defendant no harm. It went to the jury against the objection of the defendant, accompanied by instructions which required the jury to take it into consideration. We should not have disturbed the verdict had this testimony been excluded, as there was other and rather pointed testimony adduced at the trial, including the statements of Reavis to the newspaper reporter, to show that he had given another version of the affair than that detailed under oath. But, inasmuch as this testimony was contradicted by the defendant, and as he was substantially corroborated in his statements alleged to be perjured by other witnesses as to the facts and circumstances of the assault, we cannot say that this improper testimony did not have its weight with the jury in considering their verdict, and that it did not influence them in

their decision. "If the minds of the jury, at that juncture, were still tremulous with indecision between the innocence and guilt of the prisoner, the reception of such testimony was sufficient to turn the scale against him; and the courts will hesitate long before they will say that the violation of a plain rule of evidence, as in the present instance, did not operate to the prejudice of the accused." State v. Jaeger, 66 Mo. 173, 180.

The district court of Laramie county erred in the admission of the declarations of Chandier after the assault was over, made while

he was returning to Ft. Russell, and the day after, when he was fleeing from justice, as they were declarations not forming part of the res gestæ, and those of a third person, not made in the presence and hearing of Reavis, the plaintiff in error. The judgment of said court is reversed, and the cause remanded for a new trial.

CONAWAY and POTTER, JJ., concur.

(6 Wyo. 254) BOARD OF COM'RS OF SWEETWATER COUNTY v. BOARD OF COM'RS OF CARBON COUNTY.

(Supreme Court of Wyoming. March 3, 1896.) COUNTY-LIABILITY FOR CARE OF PAUPER BY ADJOINING COUNTY.

Rev. St. § 1955, provides that when any nonresident of the county, or any person not within the definition of a "pauper," shall fall sick in any county, not being able to pay his board or medical attendance, the county commissioners, upon notice, shall provide such assistance as they may deem necessary. Section 1957 provides that, if any person shall become chargeable in any county in which he does not reside, he shall be cared for by the county commissioners where he may be found, and that notice shall be sent to the county in which such person has his permanent residence, with a request that the authorities remove said pauper forthwith, and pay the expenses incurred, and that if any such pauper, by reason of sickness, or for any cause, cannot be removed, then the county taking charge of such pauper may recover from the county to which said pauper belongs the sum expended on his behalf. Held, in an action by the county of Carbon against the county of Sweetwater to recover for the care of a person who was found injured in the latter county, but who, for convenience, was taken to and cared for by plaintiff county, whence he could not safely be removed, that defendant was not liable, where the evidence disclosed that, though said person was without means, it did not show that he was a pauper, nor that he was a resident of defendant county, and the trial court did not find that the county board had notice as provided in section 1955, though notice under section 1957 may not have been necessary.

Error to district court, Sweetwater county; Jesse Knight, Judge.

Action by the board of commissioners of the county of Carbon against the board of commissioners of the county of Sweetwater for money paid out and expended for the support and care of a pauper wrongfully removed from Sweetwater county to Carbon county. There was a judgment for plaintiff, Carbon county, and defendant brings error. Reversed.

E. E. Enterline, Co. and Pros. Atty., for plaintiff in error. F. Chatterton, Co. and Pros. Atty., for defendant in error.

GROESBECK, C. J. The petition In this action was amended during the trial, and alleges substantially the following facts: On or about July 26, 1891, one Ben Zimmer, a pauper, was wrongfully removed and transported from Sweetwater county to Carbon county, while helpless and suffering from De

vere bodily injuries, and, by reason of said wrongful removal and his helpless and destitute condition, he wrongfully became a charge, as a pauper, upon Carbon county, and his physical condition was such that he could not be removed from that county. Carbon county expended for and on behalf of Sweetwater county, in the care and maintenance of said pauper, between July 26, 1891, and the 9th day of September, 1891, the sum of $478.10, and demanded judgment for said sum, with interest thereon running 30 days after the last item of the account. A demurrer to the petition was filed by the defendant below, which was overruled by the court, and a general denial was then filed as an auswer to said petition. A trial was had, and the court, a jury being waived, made special findings of fact and conclusions of law, and gave judgment for the plaintiff, and it is to reverse this judgment that proceedings in error are instituted.

The findings of fact, briefly stated, are that said Zimmer was a pauper, on the date named, at Wamsutter, Sweetwater county, Wyo., maimed and wounded, demanding immediate medical and surgical attention, and that owing to the distance from said place to Green River, the county seat of Sweetwater county, and the conditions as to the means of transportation, it was impossible to convey said Zimmer to Green River and save his life; that his removal was without authority from the representatives of Sweetwater county, but by reason of such removal the life of the pauper was saved; that, owing to the maimed and wounded condition of the pauper, he could not have been removed during the time he was cared for and maintained by Carbon county, and that owing to his condition, and the impossibility of his removal, no notice was necessary to bind Sweetwater county, from whence he was removed; that, without proof as to the former residence of the pauper prior to the day of his injury, the court found that Sweetwater county was liable to Carbon county for the amount expended, and gave judgment for such amount, with interest thereon, in the sum of $612.95, and costs taxed to $280.70. Objections were made to most of the findings of fact, and under them it was assigned as ground in the motion for a new trial that the decisions and findings of the court should have been for the defendant, Sweetwater county. It is also assigned as error that, under the evidence and the law governing the case, the decision should have been for the defendant. Other assignments of error are set forth, in the action of the trial court in overruling the demurrer to the petition, the motion for judgment on the pleadings, and to the introduction of evidence on behalf of the plaintiff objected to by defendant; but it will not be necessary to consider any of these matters, as the case will be disposed of on its merits.

The evidence discloses that Zimmer, who was a young man between 17 and 19 years of

age, was picked up by those in charge of a freight train running east at Wamsutter, Sweetwater county, Wyo., on the date named. His arm was broken and his leg crushed. Owing to the means of transportation then available, and his serious condition, Zimmer was conveyed to Rawlins, in Carbon county, where he received prompt surgical treatment, which resulted in the amputation of an arm and leg. This treatment was necessary to save the life of the patient, and such treatment and necessary care during his convalescence was furnished by the authorities of Carbon county, and paid for by the county board of that county. It does not appear in the record that Zimmer was a resident of Sweetwater county at the time of his injury, or that he had ever resided in such county. He was without means, and in a destitute condition, when found by the employés of the railway company.

The statutes governing the matter, found in sections 1953-1957 of the Revised Statutes, vests the board of the county commissioners of each county with the entire and exclusive superintendence of the poor in their respective counties. Section 1953. Any poor person, being a "resident" of the state, may receive such relief as the case may require, out of the county treasury; and the county board is empowered to make either a contract for the necessary maintenance of the poor, or appoint agent or agents to oversee and provide for the same. Section 1954. When any nonresident of the county, or any person not coming within the definition of a pauper, shall "fall sick" in any county, not having money or property to pay his board, nursing, or medical attendance, the county commissioners, "upon notice thereof," shall provide such assistance "as they may deem necessary," and shall make such reasonable allowance for board, nursing, and medical attendance as they may deem just and equitable, and may, in their discretion, contract with some suitable perșon or persons for such services, in case of all sick persons coming within the provisions of the section. Section 1955. When any application is made by the pauper to the county board for relief, the board must require of such applicant satisfactory evidence that he has been a resident of said county for 90 days immediately preceding the date of the application for relief, and if such evidence is satisfactory the county board may, in their discretion, provide the relief specified; but if the contrary appears they must provide for the transportation of such pauper from the state, or may provide for his relief. Section 1956. If any person shall become chargeable in any county in which he did not reside at the commencement of the 90 days aforesaid, he shall be cared for by the county commissioners of the county where he may be found; and the county clerk of said county is required to send notice by mail to the county clerk of the county in which such person has his

"permanent residence" that said person has become chargeable as a pauper, and request the authorities of the last-named county to remove said pauper forthwith, and to pay the expenses incurred by reason of his care. If any such pauper, by reason of sickness or disease, or through neglect of the proper authorities to remove him, or through any other cause, cannot be removed, then the county taking charge of such pauper may, by civil action, sue for and recover from the county to which such pauper "belongs" the sum expended for and on behalf of such pauper. Section 1957.

Under these provisions the county boards are generally vested with a very large discretion in the supervision of paupers. When an application for ordinary relief is made, the first inquiry by the board is as to the residence of the pauper, and, if the applicant has been a resident of the county for 90 days immediately preceding the application, the board may, in its discretion, grant the relief; and, if the residence of the applicant has not been for the period mentioned, then the board may provide for the transportation of the pauper out of the state, or "may" provide for his relief. Each county is required to provide for its own resident paupers, if they have temporarily moved to or are found in another county; and if the county where such pauper is temporarily domiciled furnishes relief to such a one after due notice to remove him given to the authorities of the county of his residence, when he is in a condition to be removed, there may be a recovery from the county where the pauper has a permanent residence. The notice to remove the pauper is not necessary, perhaps, in all cases; and in case of sickness or disease, or if from other good causes he cannot be removed, then, in our opinion, such notice to remove is not necessary. The trial court held that such notice was not necessary, as Zimmer could not have been removed, owing to his dangerous condition, and this conclusion would have been correct if the provisions of section 1957 governed the case. The petition is drawn upon that assumption, but under the evidence the status of Zimmer falls rather within the terms of section 1955, as there is no proof showing that Zimmer had a "permanent" or other residence in Sweetwater county, or that he "belonged" to that county, at the time of his injury,-matters necessary to be shown for a recovery under section 1957. The allegations that Zimmer was a pauper, and the finding to that effect, are not supported by the evidence. In a general sense, all poor persons may be said to be "paupers," but not as the word is used in the statutes, wherein it has been defined to be poor persons, particularly those so indigent as to depend upon the proper authorities of a community charged with the support of the poor. Lee Co. v. Lackie, 30 Ark. 764. In a technical sense, the word "pauper" does not apply to a poor person smitten with a contagious disease,

who, on account of his sickness, receives aid from the county, though under a pauper act. La Salle Co. v. Reynolds, 49 Ill. 186. The chapter relating to these matters is well entitled "Poor and Paupers," and this distinction is markedly preserved therein. The statute makes a distinction between paupers and those not coming within the definition of a pauper, and also as to nonresidents who shall fall sick in any county, not having means to pay for board, nursing, and medical attendance; these latter classes being provided for in section 1955, wherein the board is not given that wide discretion that is conferred by other sections. Nonresidents and others not coming within the definition of a pauper, to be a public charge, are those who need relief in case of an emergency, particularly such a one as in the case at bar. A person may be self-sustaining in health, yet, by reason of a sudden illness or calamity, be without means to secure medical attendance, nursing, and maintenance during his illness. Section 1955 was intended to meet such an emergency, and to provide for such a class of persons.

The evidence does not disclose that Zimmer was a resident of Sweetwater county at. the time he received his injuries therein, and that fact cannot be presumed. It is not shown, therefore, that he fell within the class of persons mentioned in section 1957. Neither is it affirmatively shown that he fell within the class of persons mentioned in section 1955; that is, a nonresident, or one not coming within the definition of a pauper. Under section 1955 the county board must have notice, in order to fix its liability for the care, medical attendance, and maintenance of the afflicted person. This seems to be clear, because such a duty is imposed upon and intrusted to the county board, and the liability, of necessity, cannot attach without some notice thereof. In some of the states, the care and maintenance of the deserving poor and destitute sick is made a public charge, and if, after notice, the authorities charged with the duty of making provision for such unfortunates at the public expense fail to perform that duty, then any person supporting and caring for the neglected person may recover his reasonable outlay from the proper municipality; but in such cases the notice required must be given, before the municipality becomes liable. Goodell v. Mount Holly, 51 Vt. 423; Kent v. Chaplin, 6 Conn. 72. Section 1955 of our statute makes the liability of the county dependent upon the notice in the case of transieat or nonresident sick persons who may not have been adjudged paupers or recognized as such, and who have not been subsisting on the public bounty, and need but temporary relief. The liability of the county rests solely upon statutory provisions, as there was no liability imposed upon any public corporation, at the common law, to provide for the indigent; and the statute hav

ing provided, in effect, that notice is necessary to charge the county, in the absence of such notice the liability of the county of Sweetwater for the care and treatment of Zimmer could never attach, and the county board would not be chargeable with that duty. The trial court did not make any finding upon the sufficiency of notice, but merely held that notice was not necessary, under the facts and circumstances of the case. This would have been a proper ruling, if the notice required by section 1957, relating to relief furnished paupers, residents of another county, is the notice to be considered. There was testimony to the ef fect that one of the county commissioners of Carbon county met a member of the county board of Sweetwater county during the time relief was furnished to Zimmer by the former county, but the time of the conversation was in dispute,-whether during the period Zimmer was under care and treatment in Carbon county, or a year, or at least some considerable period later. The county board of Sweetwater county was entitled to notice within a reasonable time of the facts and circumstances of the case, and that Carbon county had furnished temporary relief, such as the emergency of the case required. Doubtless, circumstances may arise when immediate notice cannot be given to the proper board, and in such case it is possible that it may become chargeable with the amount of the relief furnished before notice is given; but notice must clearly be given, within a reasonable time, or as soon as practicable, in order that the county board of the proper county may make such provi sion, either under existing rules prescribed for such cases, or otherwise, as it may deem necessary for the proper care of a person coming within the provisions of section 1955, and in the absence of such provision after notice to render it liable to others therefor. To render the county liable, the ministrations to the sick person must be furnished officially and not officiously. It may be that under the circumstances of the case the county of Carbon was primarily liable, and the county of Sweetwater was not, because, while the injured lad did not "fall sick" within Carbon county, but was injured in Sweetwater county, yet in the former county he was in a situation demanding immediate relief, and it was there that medical attendance and care were promptly and humanely furnished. It has been held, under similar statutes else where, that in such cases, in the long run, the account will be equalized between the counties, where the one to whom the relief is extended has no permanent residence in any county. Lander Co. v. Humboldt Co. (Nev.) 32 Pac. 849. It may be that Carbon county alone was chargeable with the care of Zimmer, but this point we do not decide. We do hold that, as the injured lad who received care from Carbon county was not shown to be a resident of Sweetwater coun

ty, the case does not fall within the terms of section 1957, or the case made by the pleadings and the findings. Whether the facts are such as would render Sweetwater county liable for any part of the expenses, under the provisions of section 1955, it is unnecessary and improper for us to consider, for the reason that there is a conflict in the evidence as to whether any notice was given at any time, and the trial court did not pass upon that disputed question of fact, or decide it in any way. If any netice was in fact given, then the question, which would be a mixed one of law and fact, would arise whether it was sufficient, and given within such a reasonable time as to make Sweetwater county liable under that section of the statute to care for Zimmer, or to reimburse Carbon county for the relief furnished him.

As to the matter of taxation of costs for the fees and mileage of witnesses coming from Carbon county, the county of their residence, to attend the trial of the cause in Sweetwater county on behalf of the defendant in error, the plaintiff and prevailing party in the trial court, it is apparent that such a question need not be decided, as the judgment must be reversed. The judgment of the district court for Sweetwater county is reversed, and the cause is remanded to that court for a new trial.

1. The fact that land on which discovery and location of a mining claim are made is within the patent limits of a town will not affect the title of the locator, where it was known prior to the patent to the town that a mineral vein existed where the discovery and location were made.

2. In ejectment for a mining claim, where it appears that the discovery shafts of both parties are identical, evidence that the discoveries were made on lands patented prior to the dates of discovery of either party should be admitted, and the jury instructed that, if that fact was found, neither party could recover.

3. An instruction based on evidence not in the record cannot be reviewed.

4. Where an original certificate of a mining claim is void, a subsequent certificate cannot, as amendatory thereof, relate back to the date of the original certificate.

5. Where an original certificate of location of a mining claim is subject to amendment, a certificate amendatory thereof will relate back to the date of the original certificate.

Appeal from district court, Gilpin county. Action by Joseph Moyle against Emma F. J. Bullene and others. From a judgment for defendants, plaintiff appeals. Reversed.

The action was ejectment; the controversy, over a lode mining claim situated at Blackhawk, on Bobtail hill. Plaintiff claimed title to it as the "Tywarnhail Lode"; defendants,