Appellant was convicted in the district court of Potter county of the offense of unlawfully possessing intoxicating liquor, and his punishment fixed at one year in the penitentiary.
The record discloses that the appellant was in the mercantile business in the city of Amarillo and occupied the back part of his store for residence purposes at the time the officers obtained a search warrant, raided said premises and found about twenty-two pints of whiskey therein. The appellant did not take the witness stand, but his wife as a witness in his behalf testified that she had been under the treatment of a physician for many years, and whiskey had been prescribed for her, and that her husband had kept whiskey for her practically all of said time; that after prohibition went into effect and whiskey became so high, they had decided to see if they could not buy some cheaper, and had purchased this whiskey a few days before the raid at a much lower price by taking all the party had, and that same was bought for and used for medicinal purposes in her own behalf. The appellant's contention on this issue was supported by other testimony outside of that of his wife relative to her use of whiskey and her condition requiring same.
Bill of exceptions No. 5 presents objections to testimony of a witness as to a conversation had between him and appellant at the time of the arrest. Appellant's objection to it is that what he said was not res gestae because in answer to questions. It appears that he was asked in reference to whether he made or bought or stole or found the intoxicating liquor.
Most of the testimony set out in the bill is clearly admissible as res gestae, even though appellant was under arrest. The objection made is as much directed at those parts, as at the statements made by appellant, now urged as incompetent. We see no reason to vary from the rules. The mere fact that statements are made in answer to questions will not, of itself, prevent *Page 676 such statements being res gestae. White v. State,30 Tex. Crim. 655; Harvey v. State, 35 Tex.Crim. Rep.; Long v. State, 48 Tex.Crim. Rep..
Complaint is made of the action of the court in permitting the state, over objection, to have the appellant's wife testify she never did buy any Alco-Rub, and that her doctor never did tell her she could buy it and it would be all right for external use. It is contended by appellant that this was not made in response to anything brought out by him on direct examination. While this may be true, still the record shows she testified to the doctor's advising her to use whiskey, and she testified to having used it internally and externally for pains, and we think this was germane to the matters she testified to on direct examination and properly admitted.
It is also contended that the court was in error in permitting the state, over the objection of the appellant, to have her testify that she had never bought any whiskey from anybody else except from the man who sold the twenty-two pints, and that her husband bought the whiskey for her. We see no error in such action in view of her testimony in chief. We think same germane to the matters testified to by her and properly admitted.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.