
    RICE v. STATE.
    (No. 10232.)
    (Court of Criminal Appeals of Texas.
    June 9, 1926.)
    Criminal law &wkey;>364(4) — Defendant’s statement that sheriff would not have caught him if dog had barked, for he would have been in the bushes, held part of res gestae.
    In prosecution for unlawfully manufáctur-ing intoxicating liquors, where defendant was found asleep near a still, his statement that sheriff would not have caught him if the rlog had barked like he did the night before, for he (defendant) would have been in the bushes, held admissible as res gestae.
    Commissioners’ Decision.
    Ap-peal from District Court, Grayson County ; P. E. Wilcox, Judge.
    Leonard Eice was convicted of unlawfully manufacturing intoxicating liquors, and he appeals.
    Affirmed..
    Eeasonover & Eeasonover, of Denison, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, .and Eobt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BAILEE, J.

The appellant was convicted in the district court of Grayson county for; unlawfully manufacturing intoxicating liquors, and his punishment assessed at one year in the penitentiary. The record discloses that the sheriff and his deputy, at night, discovered a still in operation, and upon approaching the scene found the appellant and one Koy Shives asleep on a pallet within a few feet of said still. The sheriff, Miles, testified for the state that when he arrived upon the scene of action said Shives remarked, “Well, you fellows have caught us,” and requested that they wait until his father came, and that the appellant laughed and said, “Well, you wouldn’t have caught us if that damned dog had have barked like he did last night, for I would have been in the bushes.”

• The record discloses that the appellant failed to testify or to introduce any evidence in his behalf. We find only one bill of exception in the record, which complains of the action of the court in permitting the state, over the objection of the appellant, to have the witness, Miles, testify that at the time he walked up to where the still was the appellant laughed and said, “Well; you wouldn’t have caught us if that damned dog had have barked like he did last night, for I would have been in the bushes.” The appellant contends that said evidence was irrelevant and incompetent. We are of the opinion that the appellant’s contention is unsound, and that there was no error in the admission of this testimony, as the same came clearly within the rule of res gestae. Coburn v. State, 96 Tex. Cr. R. 26, 255 S. W. 613; White v. State (Tex. Cr. App.) 278 S. W. 203; Harrison v. State (Tex. Cr. App.) 278 S. W. 430.

After a careful examination of the entire record, and failing to find any error therein, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PEE CUBIAM. 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.  