Appellant is under conviction for conveying saws into the jail of Stephens County to facilitate the escape of G. C. Allen, who was confined in the jail on an accusation of felony. The punishment assessed was five years in the penitentiary. (Prosecution was under Art. 328, Penal Code.)
G. C. Allen was in jail on a felony charge. Appellant was placed in jail for drunkenness. Other inmates of the jail at the time testified to conversations between appellant and Allen and between witnesses and appellant which authorized the jury to find that Allen had made arrangements with appellant for the latter to bring saws into the jail to be used by Allen in effecting *Page 292 his escape. Appellant was released from jail upon paying his fine. Some three or four days later he appeared in the court house apparently again drunk. He was taken in charge by the officers and placed in jail the second time. The jailer observed him as he was taken upstairs in the jail and thought his intoxication more simulated than real. Inmates of the jail testified that immediately upon his second entrance in jail appellant called for Allen, who was seen to receive a package from appellant. In a few minutes thereafter Allen exhibited the saws to another prisoner. The next day appellant paid his fine upon the second drunkenness charge and was again released. When the saws were discovered by the officers appellant was again and for the third time arrested and placed in jail, the last time upon the present charge. No evidence was introduced by the state as to the conversation and conduct of appellant after he had been arrested and confined upon the charge of conveying saws into the jail. Appellant complains because the court admitted proof of his conduct and conversations while in jail on the first two occasions, it being his contention that Article 727, C. C. P. (Rev. 1925), which prohibits proof of statements made while under arrest or in custody except under certain conditions, was available to him. This contention cannot be sustained. The conversations and conduct proven on the first occasion while appellant was in jail related to an offense not yet committed, but which was then being contemplated and planned, and those proven on the second occasion of his incarceration related to an offense then being committed, it being the state's theory that appellant had purposely contrived to be arrested and placed in jail to furnish an opportunity to commit the very offense for which he is now convicted. We quote from Branch's Ann. Tex. Penal Code:
"If the offense was then being committed, or the statements concerned an offense which had not yet been committed, the oral statements of defendant would be admissible though made while in jail or under arrest."
The text is supported by many authorities. See Delaney v. State, 41 Tex. 601; Banks v. State, 13 Tex.Crim. App. 182; Davis v. State, 19 Tex.Crim. App. 201; Mathis v. State,39 Tex. Crim. 549, 47 S.W. 464; Pate v. State, 46 Tex. Crim. 483,81 S.W. 737; Reinhard v. State, 52 Tex. Crim. 59,106 S.W. 128; Lane v. State, 59 Tex.Crim. Rep.,129 S.W. 353; Robinson v. State, Tex.Crim. Rep. ___, 114 S.W. 811.
Appellant complains of the introduction of certain hearsay evidence against him. No objection was made to this testimony *Page 293 when offered. The court's attention was first called to it by a motion to withdraw it from the jury. The request was promptly complied with.
Finding no errors in the record, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.