
    JONES v. STATE.
    (No. 10288.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    Rehearing Denied May 11, 1927.
    1. Criminal law <§rSo693 — -Motion to suppress testimony, procured by alleged illegal search before testimony was offered, held correctly refused'.
    Refusal of court to grant a preliminary motion to suppress testimony, claimed to have been obtained by an illegal search, held proper, such motion not being proper procedure for excluding evidence illegally obtained.
    2. Criminal law <§^695(4), 1091 (4) — Where accused thinks evidence inadmissible he should object, stating grounds, and on appeal from adverse ruling state full facts in bill of exceptions.
    If accused thinks evidence is inadmissible he should object to the evidence, stating his grounds, and if the court’s ruling is against him that fact should be stated in his bill of exceptions, together with the evidence admitted and enough of the surrounding facts to show its erroneous reception.
    On Motion for Rehearing.
    3. Criminal law <@=»364(4), 519(3) — Statement by accused after arrest, admitting ownership of liquor, held! admissible as part of res ges-tae and not confession, inadmissible under statute (Vernon’s Ann. Code Cr. Proc. 1925, art. 727). .
    Statement by accused after her arrest, admitting ownership of intoxicating liquor, held admissible as part of the res gestse, since it is not to be considered as a confession inadmissible under Vernon’s Ann. Code Cr. Proc. 1925, art. 727, prohibiting the use of confessions made by the accused while in the custody of an officer.
    Appeal from District Court, Jefferson County; J. D. Campbell, Judge.
    Rosella Jones was convicted of the unlawful possession of intoxicating liquor for the purpose of sale, and she appeals.
    Affirmed.
    E. G. Vaughn, of Beaumont, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; punishment, fixed at confinement in the penitentiary for one year.

The witness Hayes, a police officer, testified that, possessed of a search warrant, he searched the home of the appellant and found therein four gallons of whisky. In addition thereto, there was beer and mash. The beer was in the making. Appellant seems to have been absent at the time the house was searched, but arrived soon thereafter. The officers át the time had in custody another woman, an inmate of the house, and appellant said:

“Don’t take my sister down; she hasn’t got nothing to do with it; that is my stuff, and there is no use to take my sister.”

Other witnesses testified that they saw the whisky upon the appellant’s premises.

We find but one bill of exceptions, and in that complaint is made of the refusal of the court to grant a preliminary motion to suppress the testirqpny claimed to have been obtained by an illegal search. This bill, as prepared, if it could be considered as proper procedure, fails to show an unreasonable search. This court has repeatedly held that the procedure attempted was unknown to our law, but that if the evidence was illegally obtained, that is, obtained through an illegal or unreasonable search, it would be proper to exclude it when it was offered. See Fowler v. State (Tex. Cr. App.) 290 S. W. 1104; Raymond v. State (Tex. Cr. App.) 291 S. W. 251.

Under the practice in this state, if evidence is offered in a criminal case which the accused 'thinks is inadmissible, he shall object to the evidence, stating his grounds, and if the court’s ruling was against him, that fact should be stated, together with the evidence adduced and enough of the surrounding facts to show its erroneous receipt. See Art. 667, Vernon’s Tex. C. C. P. 1925, vol. 2, 342, especially page 355, note 16; Baker v. State, 87 Tex. Cr. R. 213, 220 S. W. 326; Bargas v. State, 86 Tex. Cr. R. 217, 216 S. W. 172.

The evidence is sufficient. The judgment is affirmed.

On'Motion for Rehearing.

HAWKINS, J.

In our original opinion we should not have said there was only one bill of exception in the record. Outside of the question discussed, all of them relate to complaint at receiving in evidence certain statements made by appellant, and, believing them to have been properly provable as res gestee, we did not discuss them. In view of appellant’s motion, we give attention ,to these bills.

Officers went to appellant’s house to search for intoxicating liquor. No one was at home. Some of the officers remained inside the house and two went about a block away and waited until appellant came up in a car with another woman, whom, she said, was her sister. The officers went with them, or took them, to the house where the other officers had remained. In a few minutes after the whisky was found, and in view of it appellant made the statement set out in our original opinion. The officers at the time were preparing to take both appellant and her sister with them.

Other bills complain of proof of similar statements. Objection was interposed on the ground that appellant was under arrest at the time. The statements were admitted on the theory that they were res gestae, it being so stated in the explanation to the bills. In his motion for rehearing, appellant cites many cases holding that statements made by accused while under arrest are not admissible, but apparently fails to note the exception which operates to maké them admissible if the statements were res gestae. We had occasion to write at some length on this question, both .in the original opinion and on motion for rehearing in Calloway v. State, 92 Tex. Cr. R. 506, 244 S. W. 549, where the contention was that if accused was under arrest no statement in the nature of a confession would be admissible, under article 727, C. C. P. (formerly article 810), even though it might be res gestae, it being urged that the statute superseded the common-law rule. Our holding was against the contention which seems to be the same as that here made. The bills do not exclude the idea that the statements were res gestae. The court admitted them on that theory, and the record seems to support his view of the matter. Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577; Copeland v. State, 94 Tex. Cr. R. 112, 249 S. W. 495; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; 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; Martini v. State, 104 Tex. Cr. R. 238, 283 S. W. 505.

Appellant’s motion for rehearing is overruled.

MORROW, P. J., not sitting. 
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