The offense is manufacturing liquor, and the punishment is one year in the penitentiary.
Appellant complains at the court's action in permitting the sheriff to testify that immediately after he told appellant to consider himself under arrest that he said to him, "Where are your guns, Dan?" and that the appellant replied, "there are no firearms in camp, we did not come here to fight, we just came here to make a little whiskey." This testimony was admissible as a part of the res gestae. The sheriff's testimony shows that he found appellant at the still and that the whiskey was running out of the still and that appellant was standing by with a spoon in his hand, tasting it at the time the arrest was made and practically coincident with the time the statement was made. Neither was it a proper objection to this testimony that it was in response to a question.
The bill of exceptions attempting to preserve the complaint with reference to statements made by the appellant with reference to the bedclothes found near the camp, is insufficient to present any error. The only suggestion contained in this bill *Page 287 that appellant was under arrest at that time is found in his objections to the testimony. "A mere statement of a ground of objection in a bill of exceptions is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. The defendant should incorporate so much of the evidence in the bill as will verify the truth of his objections." Sec. 209 Branch's P. C. for numerous authorities sustaining this rule.
There is no merit in appellant's bill of exceptions No. 3. The testimony objected to was clearly admissible for the purpose of impeaching the appellant and besides the record shows that his answer thereto was in the negative.
The record shows that appellant offered various special charges and also made numerous exceptions to the court's charge. We have carefully examined these and think they are without merit. The court in his main charge to the jury submitted the issues involved in a very clear and concise manner and we think that every right that appellant had was fully protected in the charge.
Finding no error in the record, it is in all things affirmed.
Affirmed.
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.
ON MOTION FOR REHEARING.