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 whiskey. 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 co-principal. She testified to making the trip in the car *Page 460 with her husband, and to the fact that there was no grip in the 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 whiskey 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. Crim. 93. Her statements made at the time and under the circumstances are clearly res gestae. Cook v. State, 22 Tex.Crim. App. 525; Robbins v. State, 166 S.W. 529; Thompson v. State, 178 S.W. 1195.
The motion for rehearing will be overruled.
Overruled.