
    STACH v. STATE.
    (No. 8085.)
    (Court of Criminal Appeals of Texas.
    April 9, 1924.)
    1. Criminal law <&wkey;407(l) — Defendant’s silence, when accused of crime just before arrest, inadmissible.
    In view of Code Cr. Proc. 1911, art. 810, as to admission of confession, defendant’s silence when accused of crime in the presence of a justice of the peace and constable, just before being put in custody, is inadmissible.
    2. Criminal law <©=3407(2) — Remarks to defendant held not to so specifically charge offense as to render proof of silence admissible.
    Bemarks to defendant, “I have warned you against this” and “you have been bootlegging,” were not such specific charges of being in unlawful possession of liquor as to require answer; so that his silence was inadmissible, irrespective of his arrest or custody.
    ^rsjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      3. Criminal law <&wkey;465 — Remark of witness held inadmissible as giving his opinion without facts to support it. •
    Remark of witness to defendant on an occasion before Ms claimed offense of unlawful possession of liquor, “you have been bootlegging; * * * quit, or you are going to get into trouble,” was improperly admitted, in that it, without the facts in the record to support it, gaye witness’ opinion that defendant was a lawbreaker.
    4. Criminal law <S=»1169(2) — Erroneous admission of testimony held prejudicial notwithstanding other sufficient evidence.
    Erroneous admission of declarations to defendant, and his silence thereon, was not harmless, though the other evidence was sufficient to support the conviction, it not being so definitely and obviously so as to warrant conclusion that the verdict was not based in part on such declarations and silence.
    5. Intoxicating liquors <&wkey;233(2) — What witness saw' in looking through window of defendant’s dwelling, admissible.
    Testimony that witness, in looking through the window of defendant’s dwelling, saw defendant pouring whisky and water into bottles, is admissible on prosecution for illegal possession of liquor.
    6. Criminal law &wkey;>394 — Matters learned by use of search warrant, admissible.
    Testimony of the sheriff concerning what he learned by use of search warrant is admissible on prosecution for illegal possession of liquor.'
    7. Criminal law <&wkey;>5l6 —Act of defendant in opening door for sheriff with search warrant, not an act inadmissible under confession statute.
    The act of defendant in opening the door of his premises in order that the sheriff might execute a search warrant was not such an act-of his as would be inadmissible under the confession statute, Code Or. Proc. 1911, art. 810.
    <&3»For other cases see same topic and KEY-NUMBER, in ail Key-Numbered Digests and Indexes
    Appeal from District Court, Milan County; John Watson, Judge.
    Erank Stack was convicted of violation of the prohibition law, and appeals.
    Reversed and remanded.
    Chambers, Wallace & Gillis, of Cameron, 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 possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

A witness, who was a justice of the peace, looking through the window of the appellant’s' dwelling, observed him pouring whisky and water into soda water bottles. There were seven or eight bottles on hand which were taken possession of by the witness and a constable who was present. In the appellant’s possession were a number of corks and a funnel, a jug containing about half a gallon of whisky, and another jug containing some wine; also a tube or whisky tester. The justice of the peace, over the objection of the appellant, was permitted to testify that about four months before the date of the transaction upon which the prosecution is founded, the witness said to appellant: “You have been bootlegging. Frank, take a fool’s advice and quit, or you are going to get into trouble;” that to this the appellant made no reply. The witness also testified that his presence at appellant’s window was discovered by him and the witness said to him: “Frank, I have warned you about this,” and the appellant made no reply. This testimony was calculated to impress the jury with the view that the appellant, by his silence on both occasions, had admitted his guilt, either of the particular offense for which he was on trial or of kindred offenses. While at the moment appellant had not been formally arrested, he was in the presence of the justice of the peace and a constable, and was immediately put in custody. Under these circumstances, his silence, when accused of a crime, would not be admissible, against him. Calloway v. State, 55 Tex. Cr. R. 262, 116 S. W. 575; Dekle v. State (Tex. Cr. App.) 257 S. W. 882. Also article 810, C. C. P. Neither .the remark, “Frank, I ha've warned you about this,” nor the previous remark, charged the appellant with the present offense in a manner sufficiently specific to require an answer, and therefore was not admissible without reference to the question of arrest or custody. The circumstances under which the silence of one accused of an 'offense is provable is discussed in Wharton’s Grim. Ev. vol. 2, § 680, in which it is said in substance that the accusation must be direct and of a nature calling for a reply and must relate to the particular offense charged. For a discussion of it by this court, see Crowell v. State, 56 Tex. Cr. R. 480, 120 S. W. 897; Ritter v. State, 92 Tex. Cr. R. 247, 242 S. W. 469; Myers v. State (Tex. Cr. App.) 258 S. W. 821; Stanton v. State, 94 Tex. Cr. R. 366, 252 S. W. 519; Branch’s Ann. Tex. P. C. § 59; Un-derhill on Crim. Ev. (3d Ed.) § 208. The previous remark was moreover improperly received in that it, without the facts in the record to support it, gave the opinion of the witness that the appellant was a lawbreaker.

The evidence in. the present case, while sufficient to support the conviction, is not so definitely and obviously so as to warrant the conclusion that the verdict is not based in part upon the declarations of the justice of the peace and the- silence of the appellant. See Fulcher v. State, 28 Tex. App. 465, 13 S. W. 750.

Theré was no error in receiving in evidence the testimony of the justice of the peace touching what he saw while looking through the window; nor of the sheriff concerning what he learned by virtue of the search warrant. Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. §24; Rippey v. State, 86 Tex. Cr. R. 539, 219 S. W. 463. Nor was the act of the appellant in opening the door of his premises in order that the sheriff might execute the search warrant such an act of the accused as would be inadmissible under the confession statute. Article 810, C. C. P.

For the reason pointed out, the judgment is reversed and the cause remanded.  