The original opinion of the court is criticized for the use of the word "fruitless" in discussing the fact that in the first part of their search the officers found in appellant's dwelling house practically nothing deemed of any great consequence, and especially in view of what was later found. It appears true, as stated by one of the officers, that in their search of the house they found "a little wine" in the kitchen by the stove. We deem the use of the word "fruitless" of no materiality.
The officers reached appellant's house before day, and as soon as it was light enough to permit, they informed him of their purpose, and began searching his house, out-buildings, etc. During the progress of this search appellant asked if he would be permitted to go and milk his cows. Evidently from the record this occurred soon after *Page 657 daylight came. The facts subsequently developed are set out in the original opinion. We think the fact that there was in appellant's possession and in his field, something like one hundred yards from his house, three cartons of whiskey, amply sufficient to justify the conclusion of guilt reached by the jury. We think it no violation of the rule of res gestae for the officers to give testimony as to what was done and said by appellant in regard to and in connection with his breaking the cartons of whisky after the search had begun.
The motion for rehearing will be overruled.
Overruled.