evidence res gestae. . Indictment for murder in the first degree ; trial had and verdict for the second degree. The evidence was largely_ circumstantial, no witness testifying positively that the defendant fired the fatal shot, though there was much in the testimony pointing to him as the perpetrator of the murderous deed. There is great conflict of authority on the subject of what constitutes the res gestae. "We feel satisfied that the remark or exclamation of Cole to Walker the moment after the shot was fired, and while the difficulty was still in progress, was thus admissible as illustrative of the act which generated or gave rise to the exclamatory remark of Cole.

Mr. Wharton, discussing this point, says : “ The res gestae may, therefore, be defined as those circumstances which are the undesigned incident of a particular litigated^ act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may c'onsist of speeches of any one concerned, whether participant or bystander ; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act — a relation not broken by the interposition of voluntary [*387] individual wariness seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. They are admissible, though hearsay, because in such cases, from the nature of things, it is the act that creates the hearsay, not the hearsay the act.” 1 "Wharton Ev., § 259, and cases cited.

It will be seen from the above quotation that in the view of some of the authorities at least, the exclamations made at the time of the occurrence, or immediately thereafter, and immediately and naturally connected therewith, form part of the res gestae, whether such exclamation proceed from one of the parties to the transaction, or from a bystander.

Thus, it has been held that where the issue was whether the deceased had “died by his own hand,” his death having been caused by a pistol shot, that the declaration of the occupant of an adjoining room to that of the deceased, made immediately after the report of the pistol was heard, to the landlord of the hotel, that the deceased had shot himself, was held part of the res gestae. Newton v. Ins. Co., 2 Dill. 154. This case follows, as stated therein, as being within its reasons and principles, that of Ins. Co. v. Mosley, 8 Wall. 397, where the declarations were made by the husband within a few moments after the fall which resulted in his death; thus showing that in the opinion of the court, in the former case, no distinction is to be taken between the involuntary exclamation of a bystander, and those of a party directly interested or injured.

In a case in Massachusetts where a suit was brought against a steamboat for injuries to a passenger by the fall of a gangway leading from a wharf to the defendant’s boat, evidence was admitted that men working at the gangway were warned, immediately before the accident, that the plank was unsafe. Parker v. Steamboat Co., 109 Mass. 449. So, also, in Alabama, in a suit against a railroad [*388] company for -injury to a passenger, where'the plaintiff received injury in leaping from a car, while others who remained were unhurt, the declarations of such other persons giving their reasons for thus remaining, were held part of the res gestae. Mobile R. R. Co. v. Ashcraft, 48 Ala. 15. A similar rule in similar circumstances Las been made in Illinois in respect to exclamations of passengers. Galena R. R. Co. v. Fay, 16 Ill. 558. For these reasons we must hold the declarations of Cole admissible.

But they are admissible also for the additional reason that the remark of Cole was made directly to Walker, but elicited no response. The remark of Cole charged Walker in direct and emphatic terms with the commission of the crime, and prompted him by the strongest considerations to speak out in defense of his innocence, if innocent he really was. It is so instinctively natural for one, directly charged with some great crime, to repel the charge with an immediate and direct denial, that failure to do so is regarded as a tacit confession or admission of guilt, and as competent evidence thereof. People v. McCrea, 32 Cal. 98, and cases cited; State v. Reed, 62 Mo. 129; Martin v. State, 39 Ala. 523.

3.-: res gestae, But we are not inclined to regard the testimony of Elliott respecting the remark made by the man when arrested, and the remarks of other persons after the difficulty was over, as competent evidence, as part of the res gestae. State v. Brown, 64 Mo. 367. The language of the man arrested, that he did not shoot White, and the language of the others that “Walker shot the man,” constitutes a narrative of a past occurrence not contemporaneous with the main fact under consideration, nor so connected therewith as to illustrate its character. 1 Greenleaf Ev., § 108; 1 Wharton Ev., § 261. We have discovered no other error in the case than the one first adverted to, but it is impossible to tell just how far such incompetent evidence may have influenced the jury. See State v. Thomas, ante, p. 327.

[*389] Did tbe evidence in this case as overwhelmingly establish the guilt of the defendant as in the ease of the State v. Owen, ante p. 367, and as in other cases there cited, we should not reverse the judgment because of the error commented on, but as it is, we must reverse the judgment and remand the cause; and when the cause goes back, attention should be paid to the venue, as it is doubtful whether that was satisfactorily proven.