Appellant insists that in upholding the ruling of the trial court in admitting the testimony relating to the conversation between the appellant and the officers who found the still in his house, this court was in error.
The sheriff testified that he, in company with other officers, went to appellant's place of residence, and on the way, about three hundred yards from his home, they met and overtook him. The officers slacked up their conveyance, which was an automobile, and one of them said to the appellant: "Get in, Jim," and he got in the car. The sheriff had a warrant to search the premises of the appellant. Immediately after the appellant got into the car, he said: "You have got me." One of the officers inquired, "Where is it," and the appellant said, "In the house." The officer then said: "How much have you got," and appellant replied, "Not much." In connection with appellant's statement, "Well, you have got me," the officer testified: "I think I asked him what for — making whisky? He said, "I don't deny it." In the same connection with this testimony, one of the parties with the sheriff said to *Page 142 appellant: "Which way are you going?," that on overtaking the appellant, he said: "Get in the car and ride with us a piece; we are going down your way." He came around and got in on the side and said: "Charlie, you come after me?" and the witness said, "Why?" Appellant said: "Well, you got me," and the witness said: "What are you doing, Jim?" He said: "Well, I am a cooking; you have got me." The sheriff and his companions accompanied the appellant in the car to his house, and they there found a still, a keg of whisky and a bottle of whisky, one barrel of mash in the dwelling and two in the smokehouse, a copper boiler containing a capacity of twelve gallons, and a copper worm. The boiler was full of mash and was sitting on the stove in the dwellinghouse. There was a fire burning in the stove. The vessel was very hot. The worm was lying on the floor right close to the stove, but not connected. The witness went into further detailed description of the still. No doubt, under the facts revealed by the record, at the time the declarations of the appellant in question were made, he was in custody within the meaning of Art. 810 of the Code of Crim. Proc. relating to confessions. Illustrative cases are Roberts v. State, 83 Tex.Crim. Rep.; Clark v. State,84 Tex. Crim. 390; Willoughby v. State, 87 Tex. Crim. 40; Campbell v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 695.
The question arises, was not the testimony admissible under the part of the statute mentioned, reading thus:
". . . unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, . . . such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed."
Many cases construing this article are found. Among them are Davis v. State, 23 S.W. Rep., 687; Patterson v. State,89 Tex. Crim. 402, 231 S.W. Rep., 763; Torrence v. State,85 Tex. Crim. 310; Washington v. State, 86 Tex.Crim. Rep.; Rippey v. State, 86 Tex.Crim. Rep.; Singleton v. State,87 Tex. Crim. 302; Williams v. State, 89 Tex. Crim. 334, 225 S.W. Rep., 177; Garcia v. State, 88 Tex. Crim. 605, 228 S.W. Rep., 937; McGoldrick v. State, 89 Tex. Crim. 585, 232 S.W. Rep., 851; Branch's Ann. Tex. Penal Code, Sec. 63, and cases therein collated. The record reveals no such previous knowledge of the location of the instruments with which the crime was committed as would render the declarations complained of inadmissible under the statutory rule which requires that the finding of the fruits of the crime or instruments used in its commission shall be because of the information gained from the accused through the confession. See Willoughby v. State, 87 Tex.Crim. Rep.; Kennon v. State, 11 Texas Crim. App., 356; Nolen v. State, 14 Tex.Crim. Rep.; Owens v. State, 16 Texas Crim. App., 460. Appellant accompanied the officers to his dwelling after making the statements mentioned, and in his presence the equipment for the manufacture of whisky was found while the *Page 143 liquor was in the process of making. The officers, if their testimony is to be believed, did not previously know that the still was in the appellant's house and in operation, though they did entertain a suspicion of its presence there. It is believed that this was not such knowledge as would operate to exclude the testimony mentioned. It is by no means clear that the evidence complained of was not admissible under the rule of res gestae. Declarations of one accused of crime which come within this rule are admissible, either for or against him, even though at the time he be under arrest. Branch's Ann. Tex. Penal Code, Secs. 84, 85 and 86. At the time that the declarations were made, the accused, while not immediately within his dwelling-house, was in fact, at his home and was actually engaged in making the whisky. He was, in fact, cooking. Under these circumstances, the declaration that he was doing so would apparently, under the liberal interpretation of the res gestae rule which obtains in this State, be admissible. Wharton's Crim. Evidence, Sec. 262, note, p. 491.
There was no error, we think, in refusing to call upon the jury to determine whether appellant's guilt was that of an accomplice and not a principal. To make him a principal, it was not necessary, under the facts developed from the record, that he be present at all times during the manufacture of the liquor. The apparatus was not assembled in a moment; it was capable of manufacturing whisky; it was in his house, and the circumstances amply justified the finding that it was in his possession, albeit he may have possessed it in conjunction with others. Not only the equipment for making intoxicating liquors but a considerable quantity of intoxicating liquor itself was found upon the premises; also in the possession of the appellant, that is, in the house where he and his family lived, and his own declarations to the officers warrant the finding of the jury that he was cognizant of its presence. To connect him with guilt, it was not necessary that the evidence should show that on the particular day of his arrest, he was present when the fire was lighted or when the coil was connected. The nature of the crime was not one that demanded his continued presence during the manufacture of the liquor in order to make him a principal.
Upon this same reasoning, we think the request for the submission of the issue of alibi was properly refused.
The motion for rehearing is overruled.
Overruled. *Page 144