Pace v. State

SAYRE, J.

Conversation between the two witnesses for the prosecution, without the presence or hearing of the defendant, in the preparation of their design to procure the defendant to violate the law, afforded clear illustration of the purposes of the witnesses, but shed no light upon the subsequent conduct of the defendant. Its only effect was to lend color of probability to so much of the testimony of the witnesses as was competent, which adventitious aid it did not in law deserve, however, trustworthy it was in fact. It was not, in our opinion, of the res gastae of the alleged subsequent purchase of whisky by one of the state’s witnesses from the defendant, and was not admissible in evidence.

Justice Simpson is of opinion thht the error was harmless, while justice McClellan thinks the evidence prop' erly admitted as a part of the res gestae.

Reversed and remanded.

Dowdell, C. J., and Anderson, Denson, and May-field, JJ., concur.' Simpson and McClellan, JJ., dissent.