
    MARTINI v. STATE.
    (No. 10089.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.
    Rehearing Denied May 19, 1926.)
    1. Criminal law <S=>1095—Where bills of exception were not filed until after expiration of ■ time granted'for filing them, and no extension of time appeared in record, they will be stricken out on motioip
    Where defendant was granted 60 days in which to file hills of exception, hut hills were not filed until 19 days after expiration of that period, and no order of further extension appeared in record, hills of exception will be stricken out on motion.
    On Motion for Rehearing.
    2. Criminal law i&wkey;394—Failure to comply with law relating to- report of property seized held not to render inadmissible evidence of what was found! and seized in officer’s search (Pen. Code, 1925, art. 692).
    Failure of officer to comply with Pen. Code 1925, art. 692, requiring written report of seizure of liquors or property used in violating liquor laws, held, not to render inadmissible testimony with reference to what was found and seized in officer’s search.
    3. Criminal law <&wkey;364(4)—Defendant’s! requests to sheriff arresting him to overlook it, tear outfit up, drop it, and say nothing about it, held admissible as part of res gestee.
    In prosecution for possessing equipment for manufacture of intoxicating liquor, defendant’s requests to sheriff arresting him, when found operating still, that he overlook it, tear outfit up, drop it, and say nothing about it, were properly admitted as being part of res gestm, though defendant was under arrest.
    Appeal from District Court, Archer County ; H. R. Wilson, Judge.
    Nick Martini was convicted of possessing equipment for the manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    Taylor, Muse & Taylor, of Wichita Falls, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Roht. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for possessing equipment for the manufacture of intoxicating liquor. Punishment is one year in. the penitentiary.

Our state’s attorney moves to strike put the bills of exception because filed too late. The trial court adjourned the 28th day of November. On the 12th day of November appellant’s motion for new trial was overruled, and 60 days from that date given to file the bills. The 60 days expired on the 11th day of January. No order of further extension appears in the record. The bills were not filed until the 30th day of January, which was 19 days after the time granted had expired. The state’s motion must therefore be sustained.

It is unnecessary to review the 'facts. They are amply sufficient to support the verdict.

The judgment is affirmed.

On Motion for Rehearing.

It is now made to appear that appellant secured from the judge an order extending the time for filing bills of exception beyond the, time first allowed, and that they were filed within the period of the second extension, and should be considered.

Objection was interposed to the officer testifying with reference to what was found and seized as the result of his search because a report thereof was not made in compliance with article- 692, Pen. Code 1925. The point has been decided against appellant in Austin v. State, 97 Tex. Cr. R. 360, 261 S. W. 1035; Kimbrough v. State, 100 Tex. Cr. R. 385, 272 S. W. 453; Burns v. State, 99 Tex. Cr. R. 252, 268 S. W. 950; Reynosa v. State, 100 Tex. Cr. R. 218, 272 S. W. 452; Skinner v. State, 101 Tex. Cr. R. 68, 274 S. W. 133.

It is shown by bills 2 and 3, with the qualifications thereon, that the sheriff and his d.eputy made two trips to appellant’s premises. On the first one they found a still and 12 barrels of mash in his pasture. The still was "not connected up. They watched from 1:30 o’clock in the afternoon until 9 that night, but no one came to the still. They left, but returned before daylight the next morning. The still was in the same condition, yet unconnected. The officers resumed watch. About 8 o’clock appellant and one of his small hoys came to the still. Appellant began cutting 'wood. The officers could hear the rattling of vessels at the still •and see the smoke from the fire. After waiting a while the officers went from their place of concealment to the still. It was then connected up, mash was in it, and fire under it. The evidence is that when they went up to the still appellant had a talk with the sheriff, wanting ■ him to just overlook it, tear the outfit up, drop it, and say nothing about it. This evidence was objected to on the ground that appellant was under arTest at the time he made the statement. The court admitted the evidence on the ground that it was res gestas. That he' was correct in the ruling does not appear questionable. Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; Boortz v. State, 95 Tex. Cr. R. 479, 255 S. W. 434; Rayburn v. State, 95 Tex. Cr. R. 555, 255 S. W. 436; Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095; Foster v. State, 101 Tex. Cr. R. 628, 276 S. W. 928; Goforth v. State, 100 Tex. Cr. R. 442, 273 S. W. 845.

The only remaining bill complains that the district attorney was permitted to ask leading questions, which, together with the answers, are.shown in the bill by the court’s order. This bill is not discussed in appellant’s brief. However, we have examined it, and find nothing of such serious import as calls for reversal.

Having considered appellant’s case upon the merits, and finding nothing in the bills of exception leading to the conclusion that our former order affirming the judgment should be changed, the motion for rehearing will be overruled. 
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