
    NANTZ v. STATE.
    (No. 9748.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.
    Rehearing Denied March 3, 1926.)
    1. Criminal law <§=>1092(14).
    Statement of ground of objection in bill of exceptions is not certificate of judge as to truth of facts of objection, but merely shows objection was made.
    2. Criminal law <§=>1091 (I I).
    Accused, complaining of admission of evidence, must incorporate in bill so much of evidence as will verify truth of his objections.
    On Motion for Rehearing.
    3. Criminal law <§=>364(i/2).
    That accused’s statement is an answer to question does not preclude it from taking nature of res gestee.
    4. Criminal law <§=>364(1).
    Accused’s statements at time of commission of offense are part of transaction itself and therefore res gestae.
    5. Criminal law <§=>364(1) — Accused’s statement to sheriff arresting him, that he came there to make a little whisky, held admissible as part of res gestae.
    Statement by accused to sheriff arresting him, made while accused was actually making whisky, that they did not come there to fight but to make a little whisky, held admissible as part of res gestae.
    6. Criminal law <§=>1091(2).
    Bill of exceptions must be complete within itself and manifest the error therein attempted to be set up.
    7. Criminal law <§=>1091 (2).
    Truth of facts stated in bill of exceptions as constituting ground of objection must be made to appear in such bill, before Court of Criminal Appeals can appraise merit of objection.
    Commissioners’ Decision.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Dan Nantz was convicted of manufacturing liquor, and he appeals.
    Affirmed.
    John W. Moyers and Ritchie & Ranspot, all of Mineral Wells, for appellant.
    ■Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is manufacturing liquor, and the punishment is one year in the penitentiary.

Appellant complains at the court’s action in permitting the sheriff to testify that, immediately after he told appellant to consider himself under arrest, he said to him, “Wherq are your guns, Dan?” and that the appellant replied, “There are no firearms in camp; we did not come here to fight; we just came here to make a little whisky.” This testimony was admissible! as a part of the res gestas. The sheriff’s testimony shows that he found appellant at the still, and that the whisky was running out of the still, and that appellant was standing by with a spoon in his hand, tasting it at the time the arrest was made and practically coincident with the time the statement was made. Neither was it a proper objection to this testimony that it was in response to a question.

The bill of exceptions, attempting to preserve the complaint with reference to statements made by the appellant with reference to the bedclothes found near the camp, is insufficient to present any error. The only suggestion contained in this bill that appellant was under arrest at that time is found in his objections to the testimony. “A mere statement of a ground of objection in a bill of exceptions is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. The defendant should incorporate so much of the evidence in the bill as will verify the truth of his objections.” See 209 Branch’s P. 0. for numerous authorities sustaining this rule.

There is no merit in appellant’s bill of exceptions No. 3.. The testimony objected to was clearly admissible for the purpose of impeaching the appellant, and besides the record shows that his answer thereto was in the negative.

The record shows that appellant offered various special charges, and also made numerous exceptions to the court’s charge. We have carefully examined these, and think they are without merit. The court, in his main charge to the jury, submitted the issues involved in a very clear and concise manner, and we think that every right that appellant had was fully protected in the charge.

Finding no error in the record, it is in all things affirmed.

PER CURIAM. The foregoing opiiiion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

BATTIMORE, J.

Reviewing appellant’s complaint of our opinion, we observe that a statement of the accused may be res gestee, though in answer to a question. Branch’s Annotated P. C. p. 53, for authorities. What is said by the accused at the time of the commission of the offense is part of the transaction itself, and therefore res geste. Branch’s Annotated P. C. p. 52, for authorities. When appellant made the statement held res geste in our opinion, he was then actually making whisky, and the statement thus became part of the transaction and admissible. The Brown Case, 271 S. W. 917, 100 Tex. Cr. R. 487, cited by appellant, is entirely different in facts and also in the law applicable, as will be seen from an inspection of same.

Appellant objects to our disposition of his bill of exceptions No. 3. Same complains of a question put to appellant by the state on his cross-examination. He had testified that he left Palo Pinto county in July of August, 1921, and did not return at any time until about Christmas of that year. The state asked him if it was not a fact that at some date between September 1 and December 1, 1921, he was at Mineral Wells with his brother Albert, with a fruit jar full of singlings, and was there arrested by the chief of police. The objection made was that this was an inquiry as to an extraneous crime, not connected with the one on trial. Before we can appraise the merit of an objection, the truth of the facts stated in a bill as constituting the ground of objection must be made to appear in such bill. Nothing in the bill under discussion enables us to know whether this was in [fact an extraneous crime and not connected with the matter involved in the instant prosecution. The rule is too well settled to need citation of authorities that a bill of exceptions must be complete within itself and manifest the error therein attempted to be set up.

Being unable to agree with appellant’s contentions, his motion for rehearing will be overruled. 
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