
    BROWN v. STATE.
    (No. 8717.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    1. Criminal law <@=>364(4) — Officers’ testimony as to defendant’s attempt to break whisky Containers immediately after arrest held admissible as res gestae.
    In trial for transporting intoxicating liquor, officers’ testimony that defendant attempted to break whisky containers in his automobile immediately following his arrest after long chase held admissible as res gestae.
    2. Criminal law<&wkey;>35l(2) — Testimony that defendant refused to drive car back to'town after arrest, and did not inform sheriff that he had thrown purse away during flight in belief that officers were robbers, held! inadmissible.
    In trial for transporting intoxicating liquor, officers’ testimony that defendant refused to drive his automobile back to town after arrest and his testimony, on cross-examination, that he did not tell sheriff that he had thrown his purse away during flight in belief that officers were robbers, as he testified in chief, held inadmissible as evidence of guilt or as destroying explanation of his flight.
    3. Courts &wkey;>!04 — Matters which will not occur on retrial need not be discussed.
    Matters which will not occur on new trial, granted for other reasons, need not be discussed.
    <§n^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Coleman County; J. O. Woodward, Judge.
    O. J. Brown was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Baker & Weatherred, of Coleman, for appellant.
    Tom Garrard, State’s Átty., and Groyer C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor, with punishment of one year in the penitentiary.

This is a second appeal. The former opinion is reported in 92 Tex. Cr. R. 147, 242 S. W. 218. It contains a sufficient statement of the facts to make it unnecessary to repeat them at length. v

The officers testified that, when they 'finally overtook the car in which defendant was fleeing, he attempted to kick over some broken pieces of crockery containing whisky, and that he also refused to drive his car back to town. This testimony was objected to, on the ground that defendant was under arrest at the time of such conduct and therefore it was incompetent to prove his actions. Tfie arrest was only effected after a long chase, and the act of defendant in breaking or attempting to break the whisky containers occurred immediately after the arrest was consummated, was clearly res gestee, and proper: ly admissible.

We are not so certain about admitting proof of defendant’s refusal to drive his car ■to town. If the refusal was contemporaneous with his effort to break the containers it would appear to be admissible, but the evidence shows that one of the officers repaired a punctured tire on their car before the journey to town was begun, and, if the refusal of defendant to drive his car occurred after the delay occasioned by the repair mentioned, we ’seriously question whether it would be within the rule of res gestae, but are inclined to think it inadmissible for the same reasons appearing in the discussion of bill of exception No. 7;

It was the contention of appellant, and he so testified upon the trial, that he had no whisky in his car at the time he was fleeing from the officers, but that his conduct in attempting to escape was based upon his belief that they were robbers; that during his flight he threw away his’pockethook containing $45 in money; that, after he was released from jail on bond, he, in company with his uncle, went back over his line of flight and found said pocket book and money.

After having testified to the foregoing facts, the attorney representing the state was permitted tq ask defendant if, while under arrest and in jail, he did not overlook mentioning to the sheriff the fact that he had thrown his purse and the $45 away. Over objection, he was required to answer that he had not told the sheriff anything about it. This is complained of in bill No. 7. The court was in error in permitting the state to use the silence of defendant while under arrest as a circumstance against him. It may have been, and probably was, materially damaging to the defendant’s ease. Defendant denied that he had any whisky in his car at the timé of his flight. The state was using flight as a circumstance to show guilt. He was explaining his action by claiming that he was not trying to evade the officers because he. feared arrest for transporting whis-ky, but that he thought they were robbers, and threw his poeketbook and money away to prevent them from securing it in the event he was overtaken. After his arrest the state could not avail itself of his silence as evidence of guilt or as destructive of the explanation of his conduct. Thompson v. State, 88 Tex. Cr. R. 29, 224 S. W. 892; Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586; Johnson v. State (Tex. Cr. App.) 272 S. W. 783; Williams v. State (Tex. Cr. App.) 272 S. W. 783; Skirlock v. State (Tex. Cr. App.) 272 S. W. 782. In the Ripley Oase, supra, a number of authorities are collated upon the point discussed: See, also, Branch’s Ann. P. O. § 64, for further collation of authorities.

Various other matters are complained of. They either will not occur on another trial, or do not appear sufficiently important to require discussion.

The judgment is reversed, and the cause remanded.  