
    BROWN v. STATE.
    (No. 8524.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.)
    1. Criminal iaw <&wkey;364(4)— Statement by accused while under arrest that whisky was at another place not part of res gestse.
    In prosecution for manufacturing intoxicating liquor, statement by accused, while under arrest, that whisky was over at another place, in response to question by sheriff, is not part of res gestee.
    2. Criminal law <&wkey;537 — Statement by accused while under arrest held not admissible as having led to discovery of fruits of crime.
    In prosecution for manufacturing intoxicating liquor, statement by accused while under arrest that whisky was at another place, in response to question by sheriff, is not admissible on theory that fruits of crime were discovered by reason of statement, where record discloses that still was discovered prior to statement.
    <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Ft. Bend County; M. S. Munson, Judge.
    Ed Brown was convicted of manufacturing liquor, and he appeals.
    Reversed and remanded.
    C. I. McFarlane and John M. Cobb, both of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Ft. Bend county for the manufacture of liquor, and his punishment assessed at confinement in the penitentiary for a term of three years.

The facts show that appellant lived in a house designated in the record as A and that a still was found in a house designated in the record as B and that the house where the still was found was 250 yards from the house occupied by the defendant. The record further shows that, at the time the still was found, no whisky or other intoxicant was being manufactured therein. The record further shows that Mr. Plagan, the sheriff of Et. Bend county, in company with some of his deputies, went to the home of appellant, and the sheriff stopped at his home, and the deputies went on to the house where the still was found. One of the deputies testified that he found the still in the house designated B in the record, same not being the home of the appellant.

The only serious contention made by the appellant is found in his bill of exception No. 2. Briefly stated, this bill complains of the court’s action, in permitting the sheriff to testify as to a conversation he had with the appellant at his home when he searched the appellant’s house and arrested him. The sheriff went to appellant’s home with a search warrant, which was also in the form of a warrant of arrest, and called appellant to the door, and his testimony shows that from that time on the appellant was clearly under arrest. Under these conditions the sheriff was permitted, to testify that he asked the appellant, “Where is all that whisky and stuff you have been making down there?” and appellant replied, “It is all over to the other place.” The bill of exception presenting this matter is very full and complete, -and is entirely sufficient to show that the appellant was under arrest at' the time the statement was made. The bill is approved by the trial court without any explanation whatever. There .is but one count in the indictment, that charging the manufacture of intoxicating liquors.

The only theory on which this testimony could have possibly been admissible was that it was res gestse, or that the fruits of the crime were discovered by reason .of said statement. We are unable to find anything in this bill of exception that would indicate that it came- under either of the exceptions to the general rule that prohibits the reproduction of an oral statement made by a party while under arrest. It was not res gestae because the evidence conclusively shows that, at the time the statement was made, no liquor was being manufactured. The record negatives the idea that the fruits of the crime were discovered on account of this statement, because the sheriff’s own testimony, as shown by the bill of exception, discloses that just about the time the appellant made this statement his fellow officers called to him to come on over to the house where the still was. found, and told him they had found everything over there, and that on going over there in response to their call, he found them in possession of the still, and that these parties in possession of it, and who called him to come over there and told him they had found it about the same time the appellant made the statement complained of, were his deputies and were the same parties that went down there with him to make the raid. Under this condition of the record, we cannot do otherwise than hold that the testimony objected to was improperly admitted, and that its admission was such error as will cause a reversal of this case. Walker v. State, 2 Tex. App. 326; Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247; Manning v. State, 51 Tex. Cr. R. 214, 98 S. W. 251; Layton v. State, 52 Tex. Cr. R. 513, 107 S. W. 819; Robertson v. State, 54 Tex. Cr. R. 21, 111 S. W. 741; Chism v. State, 71 Tex. Cr. R. 389, 159 S. W. 1185; Murff v. State, 76 Tex. Cr. R. 5, 172 S. W. 247; Baggett v. State, 65 Tex. Cr. R. 425, 144 S. W. 1136.

We have examined the other matters complained of by appellant, and conclude that some of them will not occur on another trial, and that others are not of sufficient importance to require a reversal.

Eor the error above discussed, it is our opinion that the judgment should be reversed and the cause remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and’ approved by the court.  