
    EDWARDS v. STATE.
    (No. 10402.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1926.
    Rehearing Denied Dec. 22, 1926.)
    1. Witnesses <&wkey;350 — Cross-examination of accused, in liquor prosecution, as to former indictment for felony, held proper.
    Examination of accused, in prosecution for transporting intoxicating liquors, as to whether he had been charged by indictment with felony, held proper, whei-e accused testified in his own behalf, though objected to as not calling for best evidence.
    2. Criminal law <&wkey;368(3) — Statement of wife, on accused’s arrest, as to why he got her in tangle, held part of res gestee in liquor prosecution.
    Statement of wife, made to defendant at time of arrest of accused, as to why he picked her up and got her in this sort of a tangle, held admissible as pai*t of res gestae, in prosecution for transporting liquor.
    On Motion for Rehearing.
    3. Criminal law <&wkey;409 — Transporting liquor held shown where defendant had grip containing whisky in oar and stated whisky was his property.
    Where accused on arrest had grip containing whisky in ear, which defendant said was his, evidence held sufficient to sustain verdict for transporting intoxicating liquor, though wife of accused claimed grip had been put in car by third party.
    4. Witnesses <&wkey;>l93 — Wife’s question on husband’s arrest, as to why husband got her in this mess, held not privileged, where made in presence of officer.
    In prosecution for transporting intoxicating liquor, statement of wife to accused at time of arrest, as to why he picked her up and brought her into this sort of a, mess, held not privileged, where made in presence of officer.
    Appeal from District Court, Grayson County ; F. E. Wilcox, Judge.
    Baxter Edwards was convicted for transporting intoxicating liquors and be appeals.
    Affirmed.
    ¡E. W. Neagle, of Sherman, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Grayson county for transporting intoxicating liquors; punishment, two years in the penitentiary. The facts seem ample to support the conviction and present no new phases, and therefore we omit any discussion of same.

There are two bills of exception, one of which complains because the state’s attorney asked appellant, while testifying in his own behalf, if he had not been charged by indictment in Oklahoma with a felony. The objection was that this did not call for the best evidence. The holding of this court has been that the defendant may be asked this question while testifying in his own behalf, and that the objection mentioned here is not a' good one. Appellant answered that he had been under indictment at Durant, Okl., and had been in the Oklahoma penitentiary.

The other bill of exceptions complains of a statement made to appellant by his wife at the time he was arrested, the substance of which was that she said to him: “Why did you pick me up and bring me out here and get me in this sort of a tangle?” We see no error in the action of the trial court in overruling appellant’s objection. The matter seems entirely one of res gestee.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant insists that he should be granted a rehearing because of the insufficiency of the testimony, and what he asserts was error in the admission of the testimony of Mr. Shipp as to what the wife of appellant said at the time of his arrest.

We have no doubt of the sufficiency of the testimony. Appellant was arrested in his car, in which was a grip containing several gallons of whisky. The officer, testified that appellant said at the time it was his. There is no question but it had been transported.

The state introduced the officers in making out their case in chief. ‘ In developing the case for the defense, appellant took the stand, as did also his wife, who was in the car with him at the time the officers made the arrest, and who might be regarded as a coprincipal. She testified to making the trip in the car with her husband, and to the fact that there was no grip-in tlie car during the ride until they picked up a man named Barker. She testified that Barker had a grip, and that the grip produced in' evidence at the trial as 'the one having had the whisky in it looked like Barker’s grip. Her testimony entirely negatived the suggestion of guilt of appellant. In its case in rebuttal, the state asked Officer- Shipp if, at the time of the arrest, appellant’s wife did not say to appellant: “Why did you pick me up and bring me out here and get me in this sort of a mess?” This was not a privileged communication because made in the presence of other people. Cole v. State, 51 Tex. Cr. R. 93, 101 S. W. 218. Her statements made at the time and under the circumstances are clearly res gestae. Cook v. State, 22 Tex. App. 525, 3 S. W. 749; Robbins v. State, 73 Tex. Cr. R. 367, 166 S. W. 529; Thompson v. State, 77 Tex. Cr. R. 417, 178 S. W. 1195.

The motion for rehearing will be overruled. 
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