
    GAUNCE v. STATE.
    (No. 8432.)
    (Court of Criminal Appeals of Texas.
    April 30, 1924.)
    1. Criminal law <&wkey;5I8(2) — Circumstances held to show arrest or custody, precluding receipt of confession in absence of compliance with statute.
    Testimony of officer in a prosecution for manufacturing liquor that, when he informed defendant that he had a search warrant for search of his premises, defendant said, “You have caught me red-handed, I am making a run now,” held to show an arrest or custody, precluding receipt of the confession, in the absence of a compliance with Code Or. Proc. art. 810.
    2. Criminal law >&wkey;l 169(12) — -Admission of defendant's declaration not cured by testimony.
    In a prosecution for manufacturing liquor, if evidence of defendant’s declaration to officers that, “You have caught me red-handed, I am making a run now,” was error, it was not cured by defendant’s testimony that he was making liquor for medicinal purposes.
    3. Criminal law <&wkey;1144(12)— Presumption in favor of ruling admitting testimony not overcome.
    Where bill does not negative view that defendant’s declaration to officers, “You have caught me red-handed, I am making a run now,” was admissible under theory of res ges-te, the presumption in favor of trial court’s ruling admitting it is not overcome.
    4. Witnesses &wkey;>76(3) — Cross-examination of wife of accused held not violative of statute inhibiting use of wife as witness.
    Where, on direct examination, wife of accused testified that accused was using whisky under a physician’s advice, cross-examination concerning the quantity of whisky used during previous months held not to violate statute inhibiting use of wife as a witness against her husband.
    5. Criminal law <&wkey;4l9, 420(12) — Recitals of search warrant held hearsay.
    In a prosecution for manufacturing intoxicating liquor, recitals of a search warrant and supporting affidavit held hearsay.
    6. Criminal law <&wkey;l 169(1) — Admission of search warrant and affidavit held reversible error.
    In a prosecution for manufacturing intoxicating liquor, where question of guilt was vigorously combated, admission of search warrant and affidavit containing hearsay recitals held reversible error.
    <gz»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Fannin County; Ben H. Denton. Judge.
    Roy Gaunce was convicted of manufacturing intoxicating liquor, and appeals.
    Reversed and remanded.
    N. H. Rather, of Honey Grove, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty.-, both of Austin, for the State.
   MORROW, P. J.

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

The state’s evidence reveals the fact that the appellant possessed and operated a distillery and had manufactured two gallons of whisky. The evidence of the appellant and his witnesses is to the effect that the whisky was made for medicinal purposes.

Appellant’s wife, the mother of his five children, the oldest of whom was 11 years, testified that during the year 1921 and up to the summer of 1922 the family were all sick with malaria; that she had chills and fever and also some female troubles; that she was treated by Dr. Hammock and Dr. Scott. They prescribed quinine, fever powders, and tonics, and both advised her to use whisky as a medicine. According to her testimony the appellant was affected with chills and fever, and also with lung trouble; that he spit up blood: that after receiving the advice mentioned the witness had used whisky. They also moved from the locality in which they had contracted malaria; that from her testimony it appears that it was used by the appellant and other members of the family for medicinal purposes.

Dr. Scott, a physician of 25 years’ experience, testified to his acquaintance with the appellant and his family during the years 1921 and 1922, and during the latter part of the year 1921 had made professional visits to the appellant and the members of his family, but that some of these visits may have been made in January, 1922; that the appellant was suffering from malaria, and was complaining of some bronchial troubles; that he was having chills every second or third day, followed by fever, and also coughed; that his condition was attributed by the doctor to malaria; that he prescribed various medicines, including quinine, iron, and strychnine, and advised the use of whisky as medicine; that he advised its use with eggs and creosote as a remedy for bronchial trouble and as an antimalaria treatment; that he did not write any prescriptions, but advised the use of whisky by the appellant three times a day. Two other physicians 'gave evidence substantially in accord with that of Dr. Scott.

Appellant testified that there was tuberculosis in his family, and that several members had died from that malady; that he coughed and spit up blood;, that his breast hurt him, and that he was afflicted with lung trouble; that during the years 1921 and 1922 he was also afflicted with malaria, resulting in chills and fever in addition to his lung trouble. His testimony coincided with that of the doctors, and his wife with reference to the ailments'and the advice given touching the use of whisky as medicine; that in July, 1922, the date of the alleged offense, he was making whisky for himself and his family; that the mash he had on hand would have completed about three gallons of whisky; that he had made about two gallons. On his cross-examination he stated that the still cost $20, and also gave the cost' of the other material used as amounting to $5 or $6.

One of the officers testified that, when he informed the appellant that he had a search warrant for the search of his premises, he said: “You have caught me red-handed, I am making a run now.” Objection was urged against this testimony upon the ground that it was a confession and not given under the provisions of article 810, C. C. P., requiring warning and that the confession be in writing where one is under arrest. The possession of the search warrant, the presence of the officers, and the declaration of the appellant are deemed sufficient to show an arrest or custody such as would preclude the receipt of the confession in the absence of a compliance with the statute. See Dekle v. State (Tex. Cr. App.) 257 S. W. 882, and cases therein cited. Also Belson v State, 260 S. W. 197 (No. 8192) not yet [officially] reported.

Neither is the fact that the appellant subsequently testified admitting that he was making whisky regarded as curing the error, if one was committed. Appellant’s testimony that he was making whisky is given by him a color of innocence in that he insisted that he was making it for medicinal purposes and was acting under the advice of physicians because of the ill health of himself and his wife.

The declaration, “You have caught me red-handed, I am making a run now,” introduced against him, implies a consciousness of guilt. The declaration, however, may have been res gestse. The bill does not negative this view, and in that particular is inadequate to overcome the presumption in favor of the court’s ruling in admitting the testimony. Edgar v. State, 59 Tex. Cr. R. 252, 127 S. W. 1053; Ford v. State, 40 Tex. Cr. R. 283, 50 S. W. 350; Hardin v. State, 55 Tex. Cr. R. 635, 117 S. W. 974; Branch’s Ann. Tex. P. C. § 210, subds. 6, 7. Moreover, looking to the statement of facts, we understand that the declaration was made while whisky was making in the presence of the parties. See Copeland v. State, 94 Tex. Cr. R. 112, 249 S. W. 495; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707.

Appellant haying used his wife as a witness to the point that he was using whisky under the advice of physicians because of the sickness of himself and the other members of his family, and that he had been doing so anterior to the date of the offense, the inquiry made of her touching the quantity of the whisky used during the previous months was germane to the direct examination, and not violative of the statute which inhibits the use of the wife as a witness against one accused of crime. Willingham v. State, 94 Tex. Cr. R. 596, 252 S. W. 530; Johnson v. State (Tex. Cr. App.) 255 S. W. 416.

Over the objection of the appellant there was introduced in evidence p. search warrant which was in the possession of the officers who made the arrest; also the sworn application made by them to obtain the search warrant. The application was after-wards withdrawn, but the search warrant was in the main for the consideration of the jury. We perceive from the record no issue upon which the contents of the search warrant were relevant. It was properly proved and without objection that the officers making the search were possessed of a warrant. The contents of the warrant containing recitals with reference to the affidavit were necessarily hearsay. The impropriety of receiving such evidence was asserted by this court in the case of Gurski v. State, 93 Tex. Cr. R. 613, 248 S. W. 353. A reversal of the judgment, however, was not ordered, for the reason that the evidence of guilt was conclusive, and the substance of the search warrant and affidavit were in evidence without objection. In Bryant’s Case, 94 Tex. Cr. R. 67, 250 S. W. 169, the improper receipt in evidence of the search warrant and affidavit was deemed, under the facts revealed by that record, of such harmful nature as to require a reversal of the judgment. In the present case the question of guilt was very vigorously combated, and this court is not in a position to say that the recitals of the search warrant and the affidavit upon which it was based did not contribute to turn the scale against the appellant. He admitted making some whisky, but introduced much testimony going to show that his act was not unlawful. Upon the trial the evidence in favor of the state was the admitted fact that the appellant had manufactured two gallons of whisky and was preparing to make another gallon, and the testimony of the officers, which was controverted, to the effect that when arrested he said that “he was caught red-handed.” There was no evidence of a sale or offer to sell any of the whisky. The evidence available to combat the defensive theory advanced by the appellant and his witnesses was the circumstances mentioned. The recitals of the search warrant and affidavit were added to these and brought before the jury. The affidavit to the effect that the appellant was believed to be engaged in the unlawful acts, viz., that he had possessed, sold, and manufactured intoxicating liquor unlawfully, had been made in advance of his arrest upon such information as was then possessed by the affiants. That this was hearsay and not admissible upon the main issues in the case cannot be a subject of controversy. Under the facts of the present case that it may have been harmful seems apparent. It is true that the affidavit was withdrawn, but its substance was recited in the search warrant.

The judgment is reversed, and the cause remanded.  