According to the testimony of Malone, the sheriff, he observed an automobile traveling in the direction of the fair grounds. The car was followed by the witness to a point near the fair grounds, where it was parked. The sheriff parked his car at a different place and went into the fair grounds with his companion Wright, they taking different courses. The sheriff met the appellant and his brother, Carl Reese, traveling on foot. Upon calling to them, Carl Reese dropped a bottle. Appellant was in possession of a bottle of whiskey. The sheriff reached for it and said: "Let me have that Errol." Appellant slapped the sheriff's hand, pulled a bottle out of his pocket and dropped it. The sheriff picked it up and said: "Come on, boys." He conducted them in the *Page 515 direction of a hangar to a horse stall about 125 feet distant, this being the point from which the sheriff had observed the appellant and his companion walking. Inside of the hanger there was discovered a locker which, with the key taken from the appellant, the sheriff unlocked and found therein 104 bottles of whiskey, some of which were in sacks and others on a table. Some labels were also found in the locker. While the parties were walking from the place where the appellant was first apprehended to the hangar, according to the sheriff, the appellant said: "Chief, you are going to ruin me. * * * Ain't there some way that we can stop this or squash it?" The sheriff replied: "Errol, you are talking to the wrong fellow. * * * Let me have those keys." Appellant slapped the sheriff's hand away when the sheriff put his pistol against the appellant's breast and demanded the keys, which were surrendered.
In proving the corpus delicti, the law would not confine the State to the proof alone of the fact that the appellant was found walking on the fair grounds with a bottle of whiskey in his possession. It was competent for the State to prove the res gestae which would include not only the fact that the appellant had a bottle of whiskey on his person but that he had a quantity of whiskey near by, and such circumstances as were indicative of the intent of the appellant in carrying the bottle of whiskey which was in his possession. It is believed that the res gestae would include the acts and words of the appellant coincident with his arrest and which were illustrative of his intent. If, for instance, upon his apprehension, or within a few moments thereafter, he had said that the whiskey in his possession was intended merely for medicinal use or that he did not intend to remove it but merely to drink it upon the spot, or had made any other declarations explanatory of his act consistent with his innocence, the rules of evidence demand that it should not be excluded from the jury. Illustrative, is the case of Copeland v. State, 94 Tex. Crim. 112, where, at the home of Drew Copeland there was found a distillery in operation. Drew Copeland and Stanley Copeland were placed under arrest. Drew Copeland claimed the ownership of the apparatus and said that Stanley was not connected with the unlawful act. Upon the trial of Stanley Copeland, this declaration of Drew Copeland was excluded by the trial court, and because of its ruling the case was reversed. In support of its decision, this Court cited Weathersby v. State, 29 Tex.Crim. App. 278; Jeffries v. State, 9 Tex. Crim App. 603, and numerous other cases which are *Page 516 found collated in the opinion. Courts in other jurisdictions and text-writers announce this principle. See Underhill's Crim. Ev., 3rd Ed., p. 225, sec. 166. There are numerous instances in which this Court has applied this rule in favor of the accused. A like announcement, deduced from the opinions of this Court, is made by Mr. Branch in his Ann. Tex. P. C. Secs. 84 to 89, and finds sanction in many recent cases of this Court. Among them are Belson v. State, 97 Tex.Crim. Rep.; Foster v. State, 276 S.W. Rep. 928; and precedents therein cited. The same rule is applicable in behalf of the State. See Copeland v. State, 94 Tex.Crim. Rep.; Stanton v. State, 94 Tex. Crim. 367; Boortz v. State, 95 Tex.Crim. Rep.; Rayburn v. State, 95 Tex.Crim. Rep.; Lovelady v. State, 95 Tex. Crim. 571; Coburn v. State, 96 Tex.Crim. Rep.; Givens v. State, 98 Tex.Crim. Rep.; Goforth v. State, 273 S.W. Rep. 845. Under these precedents, we are of the opinion that the acts and declarations of the appellant of the receipt of which complaint is made, were not improperly received. They were acts and declarations practically coincident with the arrest, explanatory of the conduct of the accused, and though inculpatory, were, in our opinion, admissible in evidence. This conclusion we have reached upon a re-examination of the record in the light of the motion for rehearing prepared by the State.
In the criticism of the opinion of the Court, State's counsel insists that inasmuch as most of the jurors testified that they were not influenced by the comment upon the appellant's failure to testify in his own behalf, that a reversal upon that ground was not warranted. We take occasion to reiterate that which has often been said before, namely, that where a mandatory provision of the statute, such as the comment upon the failure of the accused to testify, is made in the jury room, or new and material evidence against the accused is received, the presumption of injury is not to be rebutted by the conclusion of the juror that he was not influenced. When improper evidence is received during the trial or illegal comment made by the court or counsel, it has never been thought competent to inquire into its effect by calling upon the jurors to testify that their verdict was or was not influenced by these improper proceedings. When such violations of the statute take place in the retirement of the jury, for a stronger reason this principle would apply. The announcements of this Court to that effect have been frequent and of long standing. See Mitchell v. State, 36 Tex.Crim.
*Page 517 Rep. 278; McDougal v. State, 81 Tex.Crim. Rep., and precedents there cited; also Clements v. State, 69 Tex. Crim. 371.
A motion to set aside the indictment, in all essential particulars like that before the Court in the case of Jaurez v. State, No. 9858 not yet reported, was made and overruled. We held in that case that the plea, if true, should have been sustained, and the court was in error in refusing to hear evidence upon it.
With the comments and modifications of the original opinion here made, the motion for rehearing is overruled.
Overruled.