
    WEATHERLY v. STATE.
    (No. 11210.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Rehearing Denied May 16, 1928.
    Criminal law <$=»364(4)— Statement of defendant to officer finding whisky on premises held ■ admissible as res gestee.
    Statement of defendant to .officer almost immediately after officer’s finding of whisky on defendant’s premises, that he hoped they would make it light with him, as it was the first he had had or handled for a long time, held admissible, on prosecution for possession for sale, as part of the res gestae of defendant’s possession, whether or not he was under arrest at time of statement.
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    Jim Weatherly was convicted of the possession of liquor for the purpose of sale, and he appeals.
    Affirmed.
    S. J. Osborne, of Breckenridge, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   IiATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

' Officers, with the consent of appellant, searched his restaurant and found therein a quantity of whisky and a large number of various kinds of containers, all of which had the odor and evidence of the prior presence of liquor in them.

There are two hills of exception, each presenting substantially the same complaint. It appears that when the officers found the whis-ky they took same into where appellant was and then arrested him. He followed one of the officers out on the porch of the restaurant and there said to him that h.e hoped they would make it light on him, as it was the first he had had or handled for a long time. The reception of this statement is the matter complained of in the bills of exception. We have no doubt of the propriety of receiving this testimony upon the ground that it was a part of the res gestee. Plunk v. State, 101 Tex. Cr. R. 9, 274 S. W. 156.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that we were in error in holding the statement made by appellant to the officer admissible because appellant was under arrest at the time. We have again scrutinized the bills of exception upon this point, but think our former holding to he correct. There were three rooms to the building occupied by appellant. When the officers went to search it, appellant and other parties present were detained in the front room by some of the officers while others conducted a search in the back rooms, where one-half gallon of whisky was found. It was brought into the front room and exhibited to appellant. Some further search was made and the officer who then had the whisky stepped out on the porch and was immediately followed by appellant, who made the statement set out in the original opinion. It must be remembered that appellant was charged with possessing the liquor for the purpose of sale. The statement followed almost immediately after the discovery of the whisky in his possession, so closely that under the facts we feel impelled to hold the statement to have been spontaneous. It was res gestee of the appellant’s possession, and therefore admissible although appellant was under arrest. In addition to the authority cited in our former opinion we refer also to Rayburn v. State, 95 Tex. Cr. R. 555, 255 S. W. 436; Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613; Strickland v. State, 98 Tex. Cr. R. 636, 267 S. W. 488; Boortz v. State, 95 Tex. Cr. R. 479, 255 S. W. 434; Givens v. State, 98 Tex. Cr. R. 651, 267 S. W. 725; Foster v. State, 101 Tex. Cr. R. 628, 276 S. W. 928; White v. State, 102 Tex. Cr. R. 456, 278 S. W. 203; Martini v. State, 104 Tex. Cr. R. 238, 283 S. W. 505; Goforth v. State, 100 Tex. Cr. R. 442, 273 S. W. 845. Upon the facts the Martini Case is very similar to the one now under consideration.

The motion for rehearing is overruled. 
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