
    HALEY v. STATE.
    (No. 11351.)
    Court of Criminal Appeals of Texas.
    Jan. 25, 1928.
    1. Intoxicating liquors &wkey;a235 — Defendant, charged with possessing liquor for sale, held entitled to testify respecting driving to place where whisky was obtained at companion’s request to take a drink and occurrences at such place.
    Defendant, charged with unlawful possession of intoxicating liquor for purpose of sale, held entitled to testify on direct examination that his companion requested him to drive him to place where whisky was obtained and arrest made, so that they could take a drink, that he drove to such place because companion requested it and because he wanted to take a drink, and that, upon reaching it, companion directed him to stop, pointed to jug on ground, and stated, “There it is.”
    2. Criminal law <&wkey;36l(l), 399 — Defendant may explain conduct and declarations and state motives and within certain limits state intention in participating in transaction.
    Defendant, on direct examination, is entitled to explain his conduct and declarations, to fully explain his actions, to state motives prompting them, and within certain limits to state intention in participating in transaction in issue.
    3. Criminal law &wkey;>390 — Defendant should have opportunity to explain that alleged criminal act was not criminal in fact.
    Defendant ought to be given opportunity to explain that act alleged to be criminal was not criminal in fact.
    4. Criminal law <&wkey;361 (I) — Defendant is entitled to explain fact tending to create distrust of integrity.
    Defendant or any other witness is entitled to explain any fact tending to create distrust of his integrity or truthfulness.
    5.Criminal law &wkey;>364(!)— Defendant, charged with possessing liquor for sale, held entitled to testify to exculpatory occurrences where whisky was obtained and arrest made, as constituting part of res gestee.
    Defendant, charged with unlawful possession of intoxicating liquors for purpose of sale, held entitled to testify that, when he and cora-panion reached place where whisky was obtained and arrest made, companion directed him to stop automobile, pointed to jug on ground, and stated, “There it is,” since these occurrences were part of res gestae.
    6. Criminal law <&wkey;l056( I) — Exceptions to • charge and refusal of charges cannot be considered, where not shown timely.
    Exceptions to charge and refusal to give special requested charges cannot be considered by Court of Criminal Appeals, where they are not shown to have been timely presented.
    Commissioner’s Decision.
    Appeal from District Court, Burnet County ; J. H. McLean, Judge.
    M. B. Haley was convicted of unlawful possession of intoxicating liquors for the purpose of sale, and be appeals.
    Reversed and remanded.
    Alfred P. C. Petscb, of Fredericksburg, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The indictment against appellant charged him in the first count with the unlawful possession for the purpose of sale of intoxicating liquors and in the second count with the unlawful transportation of liquors capable of producing intoxication. He was convicted upon the first count and given one year in the penitentiary.

The testimony shows that appellant, at the time of the alleged commission of the offense, was living with his father in Gillespie county, and testimony was introduced that he bore a good reputation. He was visiting a friend, and met one Sultemier by chance, and it was agreed between them that they would go to a dance that night. They went to Marble Falls in Sultemier’s car, and, leaving Marble Falls, a short distance out they left the main road and traveled what is described as a “loop” in the road, where they stopped, and, according to appellant’s testimony, Sultemier alighted from the car, got a jug of whisky hidden by the side of the road, and appellant took a drink. The car belonged to Sultemier, and the whisky was handled, apparently, by Sul-temier, who was under indictment for the same offense growing out of the same transaction as was appellant. Officers hidden nearby arrested both men almost immediately after the car stopped, at which time they found the whisky in question on the running; board of the car appellant had. driven to this point.

By appropriate bills of exception it is made to appear that appellant offered, while on the witness stand, to testify that, immediately before starting out of Marble Falls, Sul-temier, the owner of the car, told appellant that he had purchased some whisky, and that same would be delivered to him on the “loop” (which was the point of arrest of appellant), and that he wanted appellant to drive the car to this place so that they could take a drink; that appellant had no knowledge concerning said whisky other than what Sultemier had told him, had no interest therein, drove to the place for no reason other than because Suite- ■ mier told him to do so, and because he (appellant) wanted to take a drink; and, further, that, when the appellant and Sultemier. reached a point some 40 feet west of the place of the arrest, Sultemier ordered the appellant to stop,and pointing to a place in the cedars, stated, “There it isand that, after a hurried examination, Sultemier told the appellant to drive on, and then the appellant drove to the place of arrest, when Sultemier pointed to a jug on the ground and stated, “There it is.” Objections were sustained by the court to all this evidence.

It was appellant’s theory that this, with his other testimony, would have shown that he was never in legal possession of the-whis-ky ; that it was not his; that he was not at the point of arrest for any unlawful purpose; and that his act was .not unlawful. His code-fendant, being under indictment, had his lips sealed by the provision of the statute which prevented his testifying, and the action of the court sealed the lips of appellant, so that his only defense was never heard by the jury.

“The defendant must be permitted on Ms direct examination to explain bis conduct and declarations as he has testified to them or as they have been described by other witnesses. He must be permitted fully to unfold and explain his actions and to state the motives which he claims prompted them. It is, within certain limits, relevant for him to state what intention was present in his mind when he participated in a transaction which is in issue.” Underhill’s Criminal Evidence (3d Ed.) § 113.

It has been held that the statements or advice of a physician are admissible as explaining the possession of whisky. Mayo v. State, 92 Tex. Cr. R. 624, 245 S. W. 241.

It seems too plain for argument that an accused ought to be given the opportunity to explain that an act shown to be criminal by the state was not in fact such.

“The defendant or any other witness is entitled to explain any fact tending to create a distrust of his integrity or truthfulness.” Branch’s P: C. § 94, where many authorities are collated in support of the rule.

It is apparent also that the latter part of said proffered evidence, which was presented by a separate bill, was res gestae of the very transaction for which the appellant was on trial. It has been ofttimes held that in-criminative statements of the accused which were part of the res gestae are admissible against him, though he was under arrest at the time and unwarned. Givens v. State, 98 Tex. Cr. R. 651, 267 S. W. 725; Gothard v. State, 99 Tex. Cr. R. 452, 270 S. W. 177. We

can think of no reason for refusing to permit the rule to work both ways.

Exceptions to the court’s charge and refusal to give special requested charges cannot be considered because not shown to have been timely presented.

Because of the error in rejecting the above testimony, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM. 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. 
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