The opinion
Campbell, C. J.,
also concurring, at page 223, said:
“Assuming that there is not in the record full evidence of such an invitation to enter the clerk’s office as would conclu *380 sively show there was no breaking, the encouragement of criminals to induce them to commit crimes in order to get up a prosecution against them is scandalous and reprehensible.”
We feel warranted in quoting thus fully from these opinions, because the views therein expressed are specially pertinent to the facts in this case, and because of the universally recognized learning and ability of the eminent jurists who announced them.
In the case under consideration, the only evidence of the inception of the scheme to rob the express company is that of Holliday, who states that it was instigated by his superiors at St. Louis, and by him suggested to the plaintiffs in error. It further appears that before the consummation of the conspiracy the officers of the express company were informed and consented to the scheme. Hence, under the foregoing authorities the prosecution cannot be sustained.
We do not wish to be understood as intimating that the services of a detective cannot be legitimately employed in the discovery of the perpetrator's of a crime that has been or is being committed, but we do say that when in their zeal, or under a mistaken sense of duty, detectives suggest the commission of a crime and instigate others to take part in its commission in order to arrest them while in the act, although the purpose may be to capture old offenders, their conduct is not only reprehensible, but criminal, and ought to be rebuked rather than encouraged by the courts. And, accepting the version of the witness Holliday as true, it shows a state of facts that can have no place in the decent administration of justice.
The witnesses Farley and Newcome were permitted, over objection, to testify to statements made to them by the- witness Holliday, not made in the presence of plaintiffs in error or either of them. This was hearsay evidence and clearly inadmissible.
Counsel for the people attempts to justify the admission of this testimony upon the ground that the testimony of Holliday was attacked on cross-examination and his credibility *381 questioned, and therefore the people had a right to corroborate him in this manner, asserting that such procedure was in conformity to well established authorities. No authority is cited, and upon a full and careful research we feel safe in asserting that no authority can be found that will sanction the admission of this evidence. In the language of Buller, J., 13 Doug. 242 , “ It is now settled that what a witness said, not upon oath, would not be admissible to confirm what he said upon oath.”
Greenleaf in his work on Evidence, vol. 1, § 469, says:
“ But evidence that he has, on other occasions, made statements similar to what he has testified in the cause, is not admissible.”
In Robb v. Hackley, 23 Wend. 50 , Bronson, J., in a very exhaustive opinion on this subject, says :
“ But as a general, and almost universal rule, evidence of what the witness has said out of court cannot be received to fortify his testimony. It violates a first principle in the law of evidence to allow a party to be affected, either in his person or his property, by the declarations of a witness made without oath. And, ■ besides, it can be no confirmation of what the witness has said on oath, to show that he has made similar declarations when under no such solemn obligation to speak the truth. It is no answer to say, that such evidence will not be likely to gain credit, and consequently will do no harm. Evidence should never be given to a jury which they are not at liberty to believe.”
The only exception to this rule as stated by Greenleaf in the section above cited is:
“ Where a designate misrepresent is charged upon the witness in consequence of his relation to the party or the cause, in which case it seems it may be proper to show that he made a similar statement before that relation existed.”
At the time of the admission of the testimony the plaintiffs in error had made no attempt to impeach the witness Holliday; nor did they at any time do more than to deny his *382 statements, when on the stand as witnesses in their own behalf.
The witnesses Farley and Newcome testified that they had no personal knowledge of the facts stated by Holliday, and were simply repeating the story told by him. The harmfulness of this can be readily seen. The witness Farley was at the time holding an important official position ; he was a respectable citizen and possessed the confidence of the community, and the repetition by him of Holliday’s story might give it a weight and credibility greater than would have attached to it when told alone by Holliday.
However this may be, the admission of this testimony was so violative of every rule of evidence that in itself it would compel a reversal of the case, and it becomes unnecessary to notice the further objections so fully argued by counsel. For the reasons given the judgment will be reversed.
Reversed.