Appellant's position that he and his brother were under arrest when the conversation occurred between officer Lovelady and appellant's brother seems well taken and was recognized in our original opinion. We also agree with appellant in his claim that the statement of a co-defendant is not provable against accused though made in the latter's presence if the parties are under arrest at the time the statement is made. Under the legal principle mentioned appellant again insists that we were wrong in the disposition made of bill of exception number three, wherein complaint is made of receiving evidence from Lovelady that in response to a question asked Vernon Arp as to where he had been, the latter responded that "he had been down south to take a fellow home," but that he *Page 234 didn't know him. The question was disposed of in our original opinion on the ground that even though inadmissible the matter was not shown by the bill to be of such serious import as would justify predicating a reversal thereon. We have again examined the bill and our views have not been changed regarding the matter. If the bill could be supplemented by appellant's motion for rehearing, and the statement of facts, the point might present a somewhat more serious question, but even then it would be doubtful whether it was of sufficient moment to demand a reversal. While a bill of exception must necessarily be regarded in the light of the statement of facts (Martin v. State, 107 Tex.Crim. Rep., 295 S.W. 1098, Wheeler v. State, 118 Tex.Crim. Rep., 42 S.W.2d 69), yet ordinarily the statement of facts will not be looked to in aid of the bill. Many cases supporting the latter proposition will be found cited under section 213, Branch's Ann. Texas P. C., among them, McGlasson v. State, 38 Tex.Crim. Rep..
The second proposition urged in the motion for rehearing is that the trial court committed error in permitting the State to introduce in evidence an application for continuance by appellant at a former term of court. The bill presenting the question shows that after appellant had taken the witness stand in his own behalf, and had completed his testimony on direct examination, the district attorney exhibited to appellant the application for continuance, and appellant admitted that he had signed and sworn to same, whereupon the district attorney offered it in evidence, and it was admitted over appellant's objection. It is conceded that if appellant had testified to things contrary to statements contained in the application for continuance, that the latter would have been admissible for impeachment purposes if the proper predicate had been laid, and the matter is presented in the motion for rehearing as though the application for continuance had been admitted over the objection that no such predicate had been laid. However, when we go to the bill complaining of the matter we find the only objection urged was that the application for continuance was "immaterial and prejudicial." As against the objections mentioned the court's ruling was not erroneous. As we understand the record appellant's evidence in some particulars was in conflict with the averments in the application for continuance. Doubtless, if the trial court's attention had been directed to the want of proper predicate the State would have been required to meet such an objection.
We think there is no merit in appellant's third proposition, *Page 235 which is that the averment of ownership in Mrs. Mabel Houghston is not sustained by the evidence. We understand from the record that the calf alleged to have been stolen was the increase from a cow which was the separate property of Mrs. Houghston. Mr. Houghston testified that he had an agreement with his wife that all the cattle on the place from which the animal was stolen, both grown cattle and their increase, was the wife's separate property. This agreement as between the husband and wife was valid. Jordan et al. v. Mercantell, et al., 147 S.W. 357. Certainly one who might steal any of said animals would have no such right therein as would enable him to assail such agreement. Article 402, C. C. P., reads in part as follows: "Where it is the separate property of a married woman, the ownership may be alleged to be in her, or in her husband." Kauffman v. State, 53 Tex.Crim. Rep..
Believing the case to have been properly disposed of originally the motion for rehearing is overruled.
Overruled.