
    WISE v. STATE.
    (No. 9499.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.)
    1. Criminal law &wkey;>4l7(l5) — When declarations of third party admitting his guilt of crime for which accused is upon trial is admissible stated. '
    
    Declarations of third party admitting his guilt of crime for which accused is upon trial is admissible only where state is relying solely upon circumstantial evidence, and guilt of such party is inconsistent with guilt of accused, and facts show that party was so situated that he might have committed crime.
    2. Criminal law <&wkey;>419, 420(10) — Proposed testimony that would rehearse statement of third party admitting guilt of crime held in-' admissible as hearsay.
    Where, in prosecution for possession of intoxicating! liquor for purpose of sale, found in loft of defendant’s house, proposed testimony of witness that B. had told witness he put the whisky in loft of defendant’s house, and with-put defendant’s knowledge, held, properly excluded as hearsay, since state did not, in proving case, rely solely on circumstantial evidence.
    • Appeal from District Court, San Augustine County; V. H. Stark, Judge.
    O. C. Wise was convicted for possessing intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    J. R. Bogard, of San Augustine, 'for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is under conviction for possessing intoxicating liquor for the purpose of sale. Punishment, two years in the penitentiary.

In the attic of appellant’s residence the officers found 16 gallons of whisky, all of it in quart fruit jars, save some in a 1-gallon jug. They also found something less than a quart in a safe in the dining room. ' Appellant did not testify. . His son gave evidence that some six or seven months before the whisky was found by the officers witness assisted one Bailey to put the whisky in the attic; that witness had never told his father anything about it, because Bailey did not want witness’ father to know it; that Bailey had bepn dead some time; but that even after his death witness did not inform his father about the whisky.

Appellant tendered a witness who would have sworn that Bailey had told him that he (Bailey)'had 16 gallons of whisky in the loft of appellant’s house; that it had been put there without appellant’s knowledge ; and that he (Bailey) did not know how to get it without appellant knowing it. Upon objection this evidence was excluded as being hearsay testimony. The action of the court was correct. The facts do not bring the present case within the exception permitting such character of evidence. Under the rule as announced in this state the declarations of a third party admitting his guilt of the crime for which accused is upon trial is not admissible, unless the case is one in which the state is relying solely upon circumstantial evidence, and also where the guilt of said third party is inconsistent with the guilt of accused, and also where the facts show that the party making the declaration was so situated that the crime might have been committed by him. The rule followed in this state, even with the limitations mentioned, is a departure from that generally recognized. The subject has been discussed at length, and many of the older authorities reviewed, in the recent case of Stone v. State (Tex. Cr. App.) 265 S. W. 900. In the present case the state was not relying solely upon circumstantial evidence No charge upon that subject was given or requested.

Finding no error in the record, the judgment is affirmed. 
      <&wkey;>For other eases see'same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     