
    STEEDLEY v. STATE.
    (No. 10441.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1927.
    Rehearing Denied March 23, 1927.)
    1. Criminal law ¡@=519 (6)— Prisoner’s statements concerning offense not yet committed or then being committed held not privileged (Code Cr. Proc. 1925, art. 727).
    Where defendant, charged with conveying saws into jail to facilitate escape of prisoner, had made statements contemplating the crim'e during prior commitment for drunkenness, and on a second arrest contrived in order to accomplish purpose, Code Cr. Proc. 1925, art. 727, prohibiting proof of statements made while under arrest, held not to exclude such statements, for they concerned an offense “not yet committed,” and one “then being committed.”
    2. Criminal law ¡@=1169(5) — Introduction of hearsay evidence, withdrawn on motion, held not reversible error.
    In a prosecution for conveying saws into a jail, the introduction without objection of hearsay evidence, which was promptly withdrawn on motion, did not constitute reversible error:
    On Motion for Rehearing.
    3. Criminal law ¡@=1036(5), 1044 — Introduction of hearsay evidence held not available on appeal, where no objection or motion to exclude had been made.
    In a prosecution for conveying saws into a jail, introduction without objection of hearsay evidence was not available on appeal, where no motion was made to exclude the testimony.
    4. Escape ¡@=10 — Evidence held to justify conviction for conveying saws into jail.
    Evidence held sufficient to justify conviction for conveying saws into a jail to facilitate escape of prisoner.
    Appeal from District Court, Stephens County; O. O. Hamlin, Judge.
    J. D. Steedley was convicted of conveying saws into a jail to facilitate the escape of a felon, and he appeals.
    Affirmed.
    Saunders & Bounds and V. L. Shurtleff, all of Breckenridge, for appellant.
    Sam D. ’ Stinson, State’s Atty., of Austin, and iRobt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

.Appellant is under conviction for conveying saws into the jail of Stephens county to facilitate the escape of G. O. Allen, who was confined in the jail on an accusation of felony. The punishment assessed was five years in the penitentiary. Prosecution was under article 326> Penal Code.

G. C. Allen was in jail on a felony charge. Appellant was placed in jail for drunkenness. Other inmates of the jail at the time testified to conversations between appellant and Allen and between witnesses and appellant which authorized the jury to find that Allen had made arrangements with appellant for the latter to bring saws into the jail to be used by Allen in effecting his escape. Appellant was released from jail upon paying' his fine. Some three or four days later he appeared in the courthouse apparently again, drunk. He was taken in charge by the officers and placed in jail the second time. The jailer .observed him as he was taken up stairs in the jail and thought his intoxication more simulated than real, inmates of the jail testified that immediately upon his second entrance in jail appellant called for Allen, who was seen to receive a package from appellant. In a few minutes thereafter Allen exhibited the saws to another prisoner. The next day appellant paid his fine upon the second drunkenness charge and was again released. When the saws were discovered by the officers appellant was again and for the third time arrested and placed in jail, the last time upon the present charge. No evidence was introduced by the state as to the conversation and conduct of appellant after he had been arrested and confined upon the charge of conveying saws into the jail. Appellant complains because the court admitted proof of his Conduct and conversations while in jail on the first two occasions, it being his contention that article 727, O. O. P. (Rev. 1925), which prohibits proof of statements made while under arrest or in custody except under certain conditions, was available to him. This contention cannot be sustained. The conversations and conduct proven on the first occasion while appellant was in jail related to an offense not yet committed, but- which was then being contemplated and planned, while those proven on the second occasion of his incarceration related to an offense then, being committed, it being the state’s theory that appellant had purposely contrived to be arrested and placed in jail to furnish an opportunity to commit the very offense for which he is now convicted. We ¡quote from Branch’s Ann. Tex. Pen. Code, § 61:

“If the offense was then being committed, or the statements concerned an offense which had not yet been committed, the oral statements of defendant would be admissible, though made while in jail or under arrest.”

The text is supported by many authorities. See Delany v. State, 41 Tex. 601; Banks v. State, 13 Tex. App. 182; Davis v. State, 19 Tex. App. 201; Mathis v. State, 39 Tex. Cr. R. 549, 47 S. W. 464; Pate v. State, 46 Tex. Cr. R. 483, 81 S. W. 737; Reinhard v. State, 52 Tex. Cr. R. 59, 106 S. W. 128; Lane v. State, 59 Tex. Cr. R. 595, 129 S. W. 353; Robinson v. State, 55 Tex. Cr. R. 42, 114 S. W. 811.

Appellant complains of the introduction of certain hearsay evidence against him. No objection was made to this testimony when offered. The court’s attention was first called to it by a motion to withdraw it from the jury. The request was promptly complied with.

Binding no errors in the record, the judgment is affirmed.

On Motion for Rehearing.

LATTIM'ORE, J.

Complaint is made in the motion for rehearing of the fact that the learned trial judge, in instructing the jury not to consider certain hearsay testimony of the witness Dillon, failed and refused to so instruct the jury with regard to the same testimony given by two other witnesses. Examination of the record discloses that no objection was made to the testimony of the two other witnesses, and no motion was made to exclude the testimony given by them.

Complaint is also' made of the insufficiency of the testimony. A review of the facts shows that appellant was put in jail and was heard engaged in conversation with one of its inmates, and later told other people that said other inmate had offered him $100 to bring saws into the jail. The facts further show that upon a real or pretended charge appellant was put in jail again a few days later and was seen to hand a package to the party whom he claimed had offered him $100 to bring saws into the jail. A few minutes later said party exhibited to other parties a pack-age containing a number of saws. In our opinion this was sufficient to justify the jury’s conclusion of guilt.

Being unable to agree with the contentions made, the motion for rehearing will be overruled. 
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