Williams v. State , 154 Tex. Crim. 388 ( 1950 )

ON MOTION FOR REHEARING.

GRAVES, Judge.

Appellant again complains relative to the claimed inadequacy of the search warrant under which this liquor was found. We think the original opinion properly disposed of such contention.

Upon opening the door of this Cabin No. 27 in the Lamar Courts, appellant made the statement as set forth in the original opinion relative to the purchase of half a case of whisky for the purpose of sale, there being six one-half pints, and one whole pint of whisky found therein. Evidently he was talking about the whisky there present. Appellant was charged with the possession of whisky for the purpose of sale in a dry area, and claims he was under arrest at the time he made the remark about the purchase of half a case of whisky. If such be true, we think the doctrine of res gestae overrides the fact of appellant’s probable arrest. See Plunk v. State, 101 Tex. Cr. R. 9, 274 S. W. 156, wherein it is said:

“In our opinion, the testimony was admissible as a part of the res gestae of the transaction, and in such case it was immaterial whether the accused was under arrest or not. In Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095, a similar statement, made under much the same circumstances, was held admissible. See, also Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613; where the accused made a statement, when whisky was found in the back of a car, that it was his. See, also, Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; Hill v. State, 96 Tex. Cr. R. 364; 257 S. W. 262; Qualls v. State, 97 Tex. Cr. R. 406, 261 S. W. 1033; Calloway v. State, 92 Tex. Cr. R. 506, 244 S. W. 551.”

Appellant being charged with the possession of whisky for the purpose of sale, we think his statement relative to such possession was res gestae thereof. We do not think the trial court was in error in failing to charge relative to the possession of this whisky upon the part of Flora Nell McNeal. She made no statement nor laid any claim to the liquor there present. The mere fact of her presence in company with appellant and naught further shown would not raise any presumption relative to her possession for the purpose of sale of the liquor toward which appellant seemed to direct his remarks in the presence of the officers. Appellant placed her without the suspicion of being the owner or possessor of such liquor for the purpose of sale.

We think the original opinion properly disposes of this cause, and the motion for a rehearing will therefore be overruled.