
    HILL v. STATE.
    (No. 7484.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1923.)
    1. Criminal law <&wkey;364(5) — Declarations of defendant at time of arrest held admissible as part of the res gestse.
    In a prosecution for transporting intoxicating liquor, where it was shown that three quarts of liquid had been taken from defendant’s possession by an officer at the time of his arrest, testimony that defendant had stated then that he bad found the bottles and did not know what they contained held part of the res gesta} and admissible either for or against him.
    2. Criminal law <&wkey;364(4) — -Aots of accused after arrest tending to show guilt held not part of res gestee and inadmissible.
    In a prosecution for transporting intoxicating liquor, proof that defendant, after arrest, seized a jar containing liquid which had been taken from his possession, and drank part of the contents, held not part of the res gestee and inadmissible under Code Cr. Proc. 1911, art. 810, which inhibits proof of confessions while under arrest; such section being applicable to acts as well as words.
    other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Jim Hill was convicted of transporting intoxicating liquor and he appeals.
    Ee-versed.
    Johnson & Waters, of New 'Boston, for appellant.
    E. G. Storey, Asst. Atty. Gen., for the State.
   MOEEOW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Appellant was arrested by the witness Jordan, who was searching the cars in the railroad yards. He found a number of negroes in one of the ears and observed the appellant walking on the ground. Appellant was stopped, and from his possession the officer took three quart-bottles of liquid. Two of them he poured on the ground. Appellant and the remaining bottle were taken to the jail. According to the officer having him in charge, when appellant reached the jail he was very cold, and grabbed up the jar and drank about half of its contents. The officer expressed the opinion or belief that the liquid was whisky. Upon tests made by some of the state’s witnesses, the liquid which was poured upon the ground would not burn, and according to their testimony, it had no odor which was discoverable and the liquid was not tasted by them. Other witnesses said that the liquid had the odor and appearance of white corn whisky. It was also shown that whisky would burn. That which remained in the jar in the possession of the state was not introduced in evidence, nor was there testimony showing any analysis of it. Appellant’s witnesses testified that the article was not whisky.

By the same officer who made the arrest, appellant sought to prove o.n cross-examination that at the time the three quarts of liquid were found in his possession, appellant stated that he had found them by the car and that he did not know what they contained. This was rejected as self-serving. Judges and text-writers agree that—

“Where a person does any act material*to be understood, his declarations made at the time of , the transaction, and expressive- of its character, motive, or object, are regarded as verbal acts indicating a present purpose and intention, and are therefore admitted in proof like other material facts.”

The quotation is from the opinion of Chief Justice Eoberts in the case of Ward v. State, 41 Tex. 613, in which it was decided that the declarations of one found in possession of property recently stolen, made at the time of his arrest or apprehension in explanation of his possession, were admissible. Such declarations are a part of the res gestee and are admissible either for or against tihe accused. Effect has been given to this principle many times by this court. See Branch’s Ann. Tex. P. 0. §§ 85 and 86, and numerous cases listed. See, also, page 1333 of the same book, as well as Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Johnson v. State, 46 Tex. Cr. R. 291, 81 S. W. 945; Woodward v. State, 58 Tex. Cr. R. 412, 126 S. W. 271; Nelson v. State, 48 Tex. Cr. R. 471, 88 S. W. 807; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175. It is a rule of general application, and is thus stated in Underhill’s Crim. Ev. (3d Ed.) § 166. See, also, Corpus Juris, vol. 16, p. 553, § 1070; Cyc. of Law & Proc. vol. 25, p. 138.

Article 810, C. C. P., which inhibits proof against one accused of crime of confessions while under arrest unless the exceptions of the statute are met, applies not only to tihe words but to the acts of the accused. Many illustrations are found in the reports. See Branch’s Ann. Tex. P. C. § 59; also, Johnson v. State, 50 Tex. Cr. R. 118, 96 S. W. 45; Brent v. State, 89 Tex. Cr. R. 545, 232 S. W. 845; Hernan v. State, 42 Tex. Cr. R. 464, 60 S. W. 766; Dover v. State, 81 Tex. Cr. R. 553, 197 S. W. 192. Proof that appellant seized the jar and drank part of its contents being an act done when under arrest, not res gestse, and which tended to show; guilt, was improperly received.

In the state of the record, the errors pointed out are deemed material and are such as require a reversal of the judgment.. It is so ordered.  