Certain whiskey was found upon the premises of Mrs. McLennan. Some of the bottles containing whiskey were buried under a smokehouse and some were in the toilet. The testimony of the appellant, voluntarily given upon the trial of Mrs. McLennan, was reproduced and introduced upon behalf of the State. Such testimony was in substance that the whiskey found upon the premises of Mrs. McLennan belonged to the appellant; that he purchased it at a certain place and that it was delivered to him at the McLennan home and there buried by him. He described the places where it was buried and the manner of burying it. He identified certain jars of whiskey and other articles that had been found upon the premises of Mrs. McLennan and stated that they were part of the property which he had buried.
Against the sufficiency of the evidence it is urged that the proof of the corpus delicti comes alone from the confession of the appellant. There were more than sixty pint bottles found buried on the premises of Mrs. McLennan. Under the statute, Art. 671, P. C. 1925, the possession of more than one quart of intoxicating liquor is made prima facie evidence of guilt. The presence, therefore, of the quantity of whiskey mentioned was prima facie evidence that it was possessed by some one for sale. According to the appellant's sworn testimony upon the trial of Mrs. McLennan, the whiskey belonged to him and was placed by him at the points where it was found by the officers. In an exhaustive opinion upon the subject of proof of the corpus delicti, this court, speaking through Judge Hurt, in Kugadt's case, 38 Tex.Crim. Rep., declared that a confession may be used in aid of evidence in making out the corpus delicti. The rule stated in Kugadt's case, supra, was applied and approved by this court, in an opinion written by Judge Davidson, in the case of Sowles v. State, 52 Tex. Crim. 17. It was sanctioned and discussed in the case of Aven v. State, 95 Tex.Crim. Rep.; also Bennett v. State, 95 Tex. Crim. 422; Dyer v. State, 96 Tex.Crim. Rep.. It is not believed that in the original opinion the rules of evidence were transgressed in holding that upon the facts shown by the record the corpus delicti was established by competent evidence. It may be added that the rule of evidence requiring corroboration of a confession is of very doubtful application to the facts in the present instance. The testimony which the appellant gave upon the trial of Mrs. *Page 649 McLennan was not a confession. It was a voluntary statement by him under oath in a judicial proceeding under the eye of a trial court. It was given under none of the conditions which render the voluntary nature or truth of an extrajudicial confession questionable. The statement was admissible in evidence as original testimony against the appellant upon his own trial. Its admissibility would not depend upon warning as required by the confession statute, nor would it have been affected by his being in custody. With reference to such testimony the safeguards touching its voluntary nature and warning which are made necessary by the statute (Art. 727, P. C. 1925), are not demanded. This has been repeatedly declared. See Preston v. State, 41 Tex.Crim. Rep.; Collins v. State, 39 Tex.Crim. Rep.; Johnson v. State, 39 Tex. Crim. 637, and numerous other cases collated in Branch's Ann. Tex. P. C., Sec. 80.
The other matters to which the motion for rehearing adverts are deemed to have been correctly decided and discussed in the original opinion.
The motion is overruled.
Overruled.