
    STEED v. STATE.
    (No. 9181.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1925.)
    1. Criminal law <&wkey;465 —Admission of testimony, that tracks were about same size as accused’s tracks, held error.
    In prosecution for possession of equipment for manufacturing liquor, admitting testimony, that tracks, going from accused’s house to where equipment was found, were about same size as accused’s tracks, and that they seemed to have been made by about a No. 9 shoe, in absence of measurement of tracks and comparison of any kind between shoes worn by accused and such tracks; was improper.
    2. Criminal law @=>364(4) — Admission of statement by accused after arrest and some 'distance away from where equipment for manufacturing liquor was found held error.
    In prosecution for possession of equipment for manufacturing liquor, admitting, as res gestee, statement by accused, “Well you boys have got me, let me change my clothes before I go,” after his arrest, and some distance away from place where equipment was found, was error.
    Commissioners’ Decision.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    W. W. Steed was convicted of possessing equipment for manufacturing liquor, and he appeals.
    Reversed and remanded.
    Seale & Denman, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Nacogdoches county for the offense of possessing equipment for manufacturing liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.

By a proper bill of exception, complaint is made at the action of the trial court in permitting the state to offer in evidence the testimony of various witnesses to the effect that the tracks, going from appellant’s house to where the worm was found, showed to have been about the same size as appellant’s tracks, and to the further effect that^they seemed to have been made by aboutTa No. 9 shoe.- ’ The record discloses that no measurement was made of the tracks, and no comparison of any kind was made between the shoes worn by the appellant and the tracks. In the case of Smith v. State, 45 Tex. Cr. R. 405, 77 S. W. 453, the question of tracks was discussed by this court, and in that opinion Judge Henderson makes the following observation:

“The objection here urged is that the witness was not sufficiently definite as to the character of the tracks to authorize him to give an opinion as to the- similarity thereof; but stated, in substance, that the tracks he saw on the ground, which he took to be defendant’s, were of a No. 8 or 9 shoe; that the impression of the heel of the right foot, as it appeared on the ground, was that it was made by a shoe worn off on one side of the heel, and that the shoes which he saw worn by appellant on that morning appeared to be a No. 8 or -9, and that the heel on his right shoe was worn off oni one side; that the shoes also appeared to be broad across the ball, tapering towards the toe; that the impressions on the ground appeared to have been made by a shoe broad across the ball, narrowing towards the toe; that he did not take measurements of the impressions on the ground or of the shoes.”

In the following language, Judge Henderson held that this testimony was not admissible :

“However, looking to the witness’ testimony alone, we do not believe that the facts detailed by him were sufficiently definite to authorize him to give an opinion as to the similarity of the impressions on the ground with those of the shoes worn by defendant. He was not even certain as to the number of the shoe worn by appellant, stating it was an 8 or 9, and the only peculiarity suggested by him is as to the heel of the shoe and the impression of the heel on the ground. ' It occurs to us that, before a witness is authorized to give an opinion upon so vital a question as the similarity of tracks as a circumstance tending to connect appellant with the offense charged, his testimony should be more certain than is manifested here. Grant v. State, 42 Tex. Cr. R. 274 [275], 58 S. W. 1025; Gill v. State, 36 Tex. Cr. R. 594, 38 S. W. 190.”

It seems clear under the authority of the above eases that the testimony as to tracks was improperly admitted. In fact, there are many other cases, some of them very recent, which are clearly to the effect that testimony of this character should not have been admitted. Tankersley v. State, 51 Tex. Cr. R. 170, 101 S. W. 234; Ballenger v. State, 63 Tex. Cr. R. 657, 141 S. W. 91; Casanova v. State, 87 Tex. Cr. R. 63, 219 S. W. 478.

Appellant also complains at the court’s action in permitting the officer to testify as to a statement made by the appellant as follows:

“Well you boys have'got me, let me change my clothes before I go.”

The court indicates in his qualification of this bill that this testimony was admitted as a part of the res gestse. The record discloses that such equipment as was .discovered had already been found at the time this statement was made, and the officers were some distance from where it was found at the time the statement was made. There seems to be no dispute about the proposition

that the appellant was under arrest at the time the statement was made. We think that this testimony should not have been admitted. We find nothing in th'e record indicating that it was a part of the res gestae, and the statute itself would otherwise exclude it. Vernon’s Ann. C. C. P. 1916, art. 810, and the many authorities there collated.

There are other alleged errors presented by appellant, but we do not deem it necessary to discuss these; but for the errors above discussed, it is our opinion that the judgment should be 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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