#### LANIER *v.*THE STATE.

Any statement or declaration made by the accused contemporaneously with, or when iirst required by the circumstances to. account for his possession, of goods alleged to have been recently stolen is admissible. The evidence repelled in the case, being a part of the res gest®, explanatory, when considered in connection with other proved facts and circumstances, of the defendant’s possession of the property alleged to have been stolen,, was admissible for consideration by the jury.

Argued October 17,

Decided November 8, 1906.

Indictment for larceny. Befpre Judge Arnold. Walton superior court. August 23, 1906.

*Napier & Cox*and *Foster & Foster,*for plaintiff in error.

*S. J. Tribble, solicitor-general, contra.*

Beck, J.

Lanier was tried upon an indictment charging him with the larceny of a bale of cotton belonging to Wright. The defendant admitted that he got the bale of cotton charged in the indictment, but denied that he stole it, and undertook to show that it came into his possession fairly and honestly. The jury found the defendant guilty, and recommended that he be punished as for a misdemeanor. He made a motion for a new trial, which was overruled, and he excepted.

The only ground of the motion for a new trial which it is necessary for us to consider is the one complaining that “the court erred in rejecting evidence offered by movant as follows: on cross examination of the witness Blasingame, he [defendant’s counsel] asked, ‘Didn’t you pass along and tell Sam Lanier about Buck Wright [the prosecutor] having had a bale of cotton stolen?’ This .question was objected to by the solicitor-general; whereupon movant’s counsel stated to the court that he expected to prove that on the morning after said cotton was alleged to have been stolen, and before anyone was accused of the theft, the witness Blasingame was passing movant’s house, and told him that Buck Wright had a bale' of cotton stolen; and immediately movant replied, ‘Buck Wright has had no cotton stolen. I have the bale of cotton here,’ pointing to three bales of cotton there in his (Sam Lanier’s) yard, in a few feet of the road where anyone passing by could see it. Movant, proposed to make the above proof by the witness Blasingame, and so stated to the court, and the court ruled that said evidence -was. inadmissible and rejected it.”

*587The court erred-in repelling the evidence offered, and in sustaining the objection made by the solicitor-general to the question propounded to the witness Blasingame. The statement which the defendant offered to prove by the witness that he had made on the morning after the cotton was charged to have' been stolen was made pending his possession, and was explanatory thereof. “The possession being continuous, its res gestae were continuous, and the statement was embraced therein.” *Lovett*v. *State,*80 *Ga.*257. “Any statement or declaration made by the accused, contemporaneously with or when first required by the circumstances to account for his possession of goods recently stolen is admissible.” 18 Am. & Eng. Enc. Law (2d ed.) 492. “On a trial under an indictment for larceny, the acts and declarations of the defendant in reference to the property alleged to have been stolen, while holding it in her hands and showing it to others, are admissible in evidence as explanatory of her possession.” Smith *v.*State, 103 Ala. 40.

*Judgment reversed.*

*All the Justices concur, except Evans, J., disqualified.*