Reviewing appellant's complaint of our opinion, we observe that a statement of the accused may be res gestae though in answer to a question. Branch's Annotated P. C., p. 53, for authorities.
What is said by the accused at the time of the commission of the offense is part of the transaction itself, and therefore res gestae. Branch's Annotated P. C. p. 52, for authorities.
When appellant made the statement held res gestae in our opinion, he was then actually making whiskey, and the statement thus became part of the transaction and admissible. The Brown case, 271 S.W. Rep. 917, cited by appellant, is entirely different in facts and also in the law applicable, as will be seen from an inspection of same.
Appellant objects to our disposition of his bill of exceptions No. 3. Same complains of a question put to appellant by the *Page 288 state on his cross-examination. He had testified that he left Palo Pinto county in July or August, 1921, and did not return at any time until about Christmas of that year. The state asked him if it was not a fact that at some date between September 1st and December 1, 1921, he was at Mineral Wells with his brother Albert, with a fruit jar full of singlings and was there arrested by the chief of police. The objection made was that this was an inquiry as to an extraneous crime not connected with the one on trial. Before we can appraise the merit of an objection, the truth of the facts stated in a bill as constituting the ground of objection, must be made to appear in such bill. Nothing in the bill under discussion enables us to know whether this was in fact an extraneous crime and not connected with the matter involved in the instant prosecution. The rule is too well settled to need citation of authorities, that a bill of exceptions must be complete within itself and manifest the error therein attempted to be set up.
Being unable to agree with appellant's contention, his motion for rehearing will be overruled.
Overruled.