
    PLUNK v. STATE.
    (No. 8667.)
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1925.
    Rehearing Denied June 24, 1925.)
    1. Intoxicating liquors <@=*>239(2) _ Evidence held to warrant submission of case on law of principals.
    Evidence that still was found on defendant’s place about 300-yards from his dwelling, that sled tracks led from defendant’s well ,to still, and that defendant’s 10 year old son was attending to still at time it was discovered, held to warrant submission of case to jury on law of principals.
    On Motion for Rehearing.
    2. Criminal law @=»364(4) — That defendant .un* der arrest not sufficient to reject a res gestee-statement by him.
    When testimony is res gestae statement of accused, fact that he is under arrest is not sufficient to reject it.
    3. Criminal law <s=»364(4)— Defendant’s statement to officer held admissible as part of res gestae.
    Where officers found defendant’s 10 year old son at still, located on defendant’s premises, and, on informing defendant thereof, he remarked that they did not catch him there, and, on one officer stating that he would go back and get defendant’s boy, defendants stated, “Let the boy alone, it is mine,” held, that such statement was admissible as part of res gestae, and it was immaterial whether defendant was under arrest or not.
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
    Joe Plunk was convicted of manufacturing intoxicating liquor, and appeals.
    Affirmed.
    Wynne & Wynne, of Wills Point, and Gentry & Gentry, of Tyler, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Van Zandt county of manufacturing intoxicating liquor, and his punishment fixed at two years in the penitentiary.

Officers went to appellant’s premises early one morning, armed with a search warrant, and upon investigation found, in .a ravine about 300 yards from appellant’s bouse, a still in operation. There was a quantity of manufactured whisky at the still. A small hoy of appellant was present at the time. The officers went to the house of appellant and informed him that they had found his still, and he remarked that they did not catch him there. One of the- officers said that they would go back and get appellant’s boy, who was operating it, whereupon appellant said to them, “Let the boy alone; it is mine.”

Appellant’s first bill of exceptions complains of the overruling of his application for a continuance, but, as qualified by the court, we think no error shown.

The next complaint is of the reception of the statement of appellant above set out. It is contended in the bill that appellant was under arrest at the time. The learned trial judge states in his qualification to the bill that he is of- opinion that appellant was not under arrest, but he submitted the question to the jury in the charge. Substantially the same complaint appears ⅛ bill of exceptions No. 3. In our opinion, the testimony was admissible as a part of the res geste of the transaction, ■and in such case it was immaterial whether the accused was under arrest or not. In Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095, a similar statement, made under much the same circumstances, was held admissible. See, also, Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613, where the accused made a statement, when whisky was found in the back of a car, that it was his. See, also, Broz v.State, 93 Tex. Cr. R. 137, 245 S. W. 707; Hill v. State, 96 Tex. Cr. R. 364, 257 S. W. 262; Qualls v. State, 97 Tex. Cr. R. 406, 261 S. W. 1033; Calloway v. State, 92 Tex. Cr. R. 506, 244 S. W. 551.

There are several exceptions to the charge of the court. We think the facts such as called for the submission of the case to the jury upon the law of principals. The still was on appellant’s place, and about 300 yards from his dwelling; tracks of a sled in which water had been hauled led from appellant’s well down to the still. A little boy 9 or 10 years of age was at the still and attending to it at the time it was discovered. He was the son of appellant. It would be so contrary to human experience to think that a mere child, such as this, could initiate and operate a still, as to make it unbelievable. There is no suggestion that any one other than appellant was connected with the child. In the statement made to the officers when they threatened to go and take the boy, appellant said, “Let him alone; it is mine.” This fully justified the submission of the law of principals.

It is true that in the case of Bingham v. State, 97 Tex. Cr. R. 594, 262 S. W. 749, we discussed at length the rules applicable to the question of reception of statements made by the accused when under arrest, and the submission of that issue to the jury. In our opinion this question passes out of the instant case, because of our conclusion that the evidence was admissible as res gestee, regardless of whether or not the accused was under arrest. . These are the two issues briefed by the appellant, and are the only ones deemed necessary by us to discuss.

Believing the appellant has had a fair trial, and that no error appears in the record, the judgment will be affirmed.

On Motion for Rehearing.,

Appellant makes an able and ingenious argument against the correctness of our conclusion that this statement to Officer Griggs, “Leave the boy alone;, it is mine," was res geste. We might observe, in passing, that our uniform holding is that, if testimony be a res geste statement of the.accused, the fact of his being under arrest would not suffice to reject it. Branch’s Ann. P. O. p. 52, for authorities. Mr. Underhill, in the third edition of his valuable work on Grimdnal Evidence, at page 218, devotes chapter 16 to a discussion of res geste, and, among other things, after apparently drawing a distinction between the doctrine as applicable to a crime which consists of a single act, such as miurder, rape, etc., and one which involves a continuity of acts, such as the crime before us, says:

“No general rule can be enunciated as to what declarations do or do not constitute a part of the res gestae. The main question is: Are they relevant to and do they explain and illustrate the facts of the transaction in issue?”

Again, on page 21 of said work, it is said:

“The spontaneous, unpremeditated character of the declarations, and the fact that they seem to be the natural and necessary concomitants of some relevant transaction in which their author was a participant, constitute the basis for their admission as evidence.”

The case before us is one for making whis-ky. The officers found a still in operation on appellant’s premises, a short distance from his house. His 9 year old son was at the still and doing some things connected therewith. Sled tracks went, from appellant’s well to the still, and a sled was found 'there. After finding these things the officers went to appellant’s house and said, “Well, we found your still.” Appellant said, “You didn’t catch me down there.” The officer then said they would go back and get the boy, whom they had caught making it, and appellant said, “Let the boy alone; it is mine.” Under the facts of this case, the statement of appellant seems natural, spontaneous, and instinctive. He was confronted with the fact that a crime was being committed on his premises and in juxtaposition of his home, and that his 9 year old boy was connected with it. He made the statement complained of. No leading questions'were put to him, and no suggestion or threats of any character appear. He made an evasive statement, and upon the officers .npfcefirinsr to accept it, and as they were about to start back to where they had left the boy, etc., the facts and the truth of the situation spoke through appellant, and he said, “Let him alone; it is mine.’’ We see no reason to conclude our former holding in this regard in any wise erroneous.

The motion for (rehearing will be overruled. 
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