The opinion
ON MOTION FOR REHEARING.
MORROW, Presiding Judge. —
At the time of the arrest of the appellant there were several officers present. Appellant was traveling in a Ford automobile in company with Olin Vestal, who was driving the car. They were stopped by the officers, who, upon searching the car, found twenty half-gallon fruit jars each full of whiskey. After the arrest, the appellant and Vestal were taken to Sherman.
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It appears that the officers, after observing appellant and Vestal in the car while it was driven for about half a mile, stopped the car and took from it twenty half-gallon fruit jars each full of whiskey. According’ to the testimony of Vestal, who testified in behalf of the State, the whiskey was purchased by the appellant and put in the ear by him. The witness said:
“After the officers searched there and found the liquor, George Brinkley brought Gunby and myself to town. At that place, before we started, something was said by the defendant, Gunby Odneal, as to whose whiskey that was; this conversation occurred right there at the time when we were arrested. The defendant said: ‘You are not going to arrest Vestal, are you?’ and he said: ‘It is not his whiskey; it is mine. He hasn’t got anything to do with it.’ ”
The witness, George Brinkley, a deputy sheriff, testified: •
“At the- time the car was stopped and when we made this search and found the whiskey, and after I got in the car but before .the car was started, the defendant, Gunby Odneal, made the statement that the whiskey was his and we couldn’t lock Olin up.”
Appellant was in custody at the time the statement was made and unless his declaration became admissible under the res gestae rule, it should not have- been proved against him. If it was res gestae of the act of transporting intoxicating liquor, it was admissible, notwithstanding he was in custody. This subject was discussed in detail and authorities cited in Calloway’s case, 92 Texas Crim. Rep. 507 , especially in the opinion on motion for rehearing, page 516. To that ease we refer for citation of authorities touching the correctness of the announcement just made.
Appellant insists that since the car had been stopped and that at that moment the whiskey was not in motion, the journey was ended and that the declaration was of a past event and therefore not within the res gestae.rule. We regard this as untenable. The journey had not been concluded. Its continuance had been prevented by the interception and arrest. The declaration was coincident with the discovery of the commission of the offense and with the arrest, and manifested a protest by the appellant against the apprehension of his companion Vestal. A discussion of the difficult question which sometimes arises in distinguishing between a declaration which is res gestae and a confession will not be pursued further than is incident to the citation of illustrative- decisions. In Bell's case, 243 S. W. Rep. 1095 , upon the discovery of the still, one of the parties present said in effect: “The still belongs to us; don’t arrest McMillan.” In Copeland’s case, 249 S. W. Rep. 495 , on the trial of Jim Copeland, it was shown that he resided upon the farm owned by his brother, Drew Copeland. The premises were raided by officers and in the house of the appellant there were found a still and eight gallons of whiskey. The still was hot; the contents were bubbling.
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The officers arrested. Drew Copeland and one Stanley. Drew Copeland said that the still was his and that the appellant and Stanley had nothing to do with it. The rejection of this testimony was held erroneous. Because it was not received in behalf of the accused, the case was reversed.
In Coburn’s case, 255 S. W. Rep. 613 , the appellant and a companion drove their automobile to a store. An officer was nearby. Appellant got out of the car and went into the store. The officer went to the car and found that it contained some bottles of whiskey. The appellant was coming from the store and approached the car when the officer said that he had found some whiskey. When the officer asked: “Whose whiskey is this?” the appellant replied: “It is mine.” This declaration was admitted against the accused, and on appeal was held properly received as res gestae. Coburn was charged with transporting whiskey.
In Rayburn’s case, 255 S. W. Rep. 436 , the appellant, upon his arrest, requested the officers not to arrest Brown and said: “He (Brown) had nothing to do with it.” This was held properly received against the appellant. The restrictive scope of the rule of res gestae, as applied at common law and in some other jurisdictions, has been so enlarged by the early decisions in this State that citations of abstract principles are of but little value. Note of this was taken in Wharton’s Crim. Ev., Vol 1, p. 491, note. Reference is also made in various numerous recent decisions of this court. See among others, Nami v. State, 97 Texas Crim. Rep. 524 , particularly page 537.
In the present case, it may be observed that there was no testimony offered in behalf of the appellant. The testimony of the witness Vestal to the appellant’s ownership and transportation of the whiskey was an undisputed fact. If the propriety of receiving the declaration of the appellant was questionable its hurtful effect would not be clear in view of the fact that the appellant’s transportation of the whiskey was shown without contradiction by the officers who arrested him, as well as by the witness Vestal, who was the appellant’s companion. The declaration proved was indicative of a generous impulse towards Vestal and added nothing to the proof of the guilt of the appellant, as that was established, as stated above, by the testimony aside from his admission.
The motion is overruled.
Overruled.