ON MOTION FOR REHEARING.
LATTIMORE, Judge.The state thinks us wrong in holding erroneous those questions set out in several bills of exception which called for testimony from appellant while on the witness stand, in effect, that after his arrest and while in custody he did not make to the officers, as to certain criminating matters found in and on his premises at the time ■same were searched and he was arrested, — the explanation now made of ■same by him while a witness. In the early case of Nolen v. State, 14 Texas App., 474, we held that acts of the accused and even his silence while under arrest, might be in the nature of confessions and hence same would be inadmissible unless coming under some exception to the statutory rule laid down in what is now article 727, C. C. P. Attention is called to this addition to the authorities cited in our original opinion. The rule rejecting such testimony would seem to be the same whether the testimony be offered originally or as impeachment. We think the case of Henderson v. State, 101 S. W., 209, and others cited by the state in its motion, easily distinguishable in principle from the one applicable to the case before, us. The question asked the accused in the Henderson case, supra, and held by us proper, did not call for or relate to matters occurring while the accused was under arrest and unwarned. This fact makes sufficient difference. We think it clearly a violation of the rights of the accused to compel him to admit that after he was arrested and while under arrest and unwarned he made no explanation of the presence on his premises of certain matters deemed incriminating, and whose presence was explained by him while on the witness stand.
We think the case correctly decided, and the state’s motion for rehearing will be overruled.
Overruled.