Jones v. State , 106 Tex. Crim. 633 ( 1927 )

In our original opinion we should not have said there was only one bill of exception in the record. Outside of the questions discussed all of them relate to complaint at receiving in evidence certain statements made by appellant, and believing them to have been properly provable as res gestae we did not discuss them. In view of appellant's motion we give attention to these bills.

Officers went to appellant's house to search for intoxicating liquor. No one was at home. Some of the officers remained inside the house and two went about a block away and waited until appellant came up in a car with another woman, whom she said was her sister. The officers went with them, or took them, to the house, where the other officers had remained. In a few minutes after the whiskey was found and in view of it appellant made the statement set out in our original opinion. The officers at the time were preparing to take both appellant and her sister with them.

Other bills complain of proof of similar statements. Objection was interposed on the ground that appellant was under arrest at the time. The statements were admitted on the theory that they were res gestae, it being so stated in the explanation to the bills. In her motion for rehearing appellant cites many cases holding that statements made by accused while under arrest are not admissible, but apparently fails to note the exception which operates to make them admissible if the statements were res gestae. We had occasion to write at some length on this question, both in the original opinion and on motion for rehearing, in Calloway v. State, 92 Tex. Crim. 506,244 S.W. 549, where the contention was that if accused was under arrest no statement in the nature of a confession would be admissible under Art. 727, C. C. P. (formerly Art. 810), even though it might be res gestae, it being urged that the statute superseded the common law rule. Our holding was against the contention, which seems to be the same as that here made. The bills do not exclude the idea that the statements were res gestae. The court admitted them on that theory and the record seems to support his view of the matter. Gaunce v. State, 97 Tex. Crim. 365,261 S.W. 577; Copeland v. State, 94 Tex.Crim. Rep.,249 S.W. 495; Broz. v. State, 93 Tex.Crim. Rep.,245 S.W. 707; Rayburn v. State, 95 Tex.Crim. Rep., 255 S.W. 436; Bell v. State, 92 Tex.Crim. Rep., 243 S.W. 1095; Coburn v. State, 96 Tex.Crim. Rep., 255 S.W. 613; Strickland v. State, 98 Tex.Crim. Rep., 267 S.W. 488; Boortz v. State, 95 Tex.Crim. Rep., 255 S.W. 434; Givens v. State, 98 Tex. Crim. 651, 267 S.W. 725; Martini v. State, 104 Tex. Crim. 238,283 S.W. 505.

Appellant's motion for rehearing is overruled.

Overruled.

Morrow, P. J., not sitting.