The appellant contends in his motion for rehearing that we were in error in concluding that appellant's bill of exceptions No. 5, does not state as a fact that he was under arrest when the statement complained of in said bill was made.
We have again carefully considered this bill and have reached the conclusion that we were in error in this particular. The bill shows that Britton, the city marshal of Hamlin, testified that on the night of October 22, 1923, that he together with sheriff Birdwell and Deputy Stone searched a certain house on the Stovall farm jointly occupied by defendant and A. C. Williams and Viola May King, and further testified "that a number of the alleged articles stolen from the J. B. Jones residence was found in a certain trunk in the upstairs room of said building, and that immediately thereafter defendant was arrested by said officers." The bill then states that the question objected to was propounded to the witness Britton at this point. On a more mature consideration of the question we have concluded that a reasonable conclusion to be drawn from this bill is that the appellant was under arrest at the time the statement objected to was made. This testimony being a vital circumstance against the appellant in the case and the issues being very sharply *Page 158 drawn as to the appellant's guilt, we think that its admission was harmful to the appellant and is of such nature as to require a reversal of the case.
It is therefore our opinion that the motion for rehearing should be granted and that the judgment should be reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.