ON MOTION FOR REHEARING.
LATTIMORE, Judge.Upon fourteen grounds carefully stated, appellant seeks a rehearing.
Grounds one, two, five and seven renew the question in one form or another as to the admissibility of the testimony of the officers regarding the liquor found upon search of appellant’s car. The issues of probable *160cause and the legality of the search passed out of the case when appellant took the witness stand and swore that the officers did find in said car the liquor they claimed to have found. The cases cited in our original opinion and many others without any to the contrary, so hold.
Grounds three, four and nine again question the admissibility of appellant’s statement, when first asked as to what he had, after he was stopped on the highway by the officers, that he had whisky in the car. The statement, according to the state witnesses, was made at once after appellant stopped his car. The Weatherly case, cited in our original opinion, collates many authorities. In addition, Mr. Branch, in section 83 of his Annotated P. C., cites authorities too numerous to mention upholding the proposition of the admissibility of this testimony as part of the res gestae.
The sixth ground is that the eighth exception to the court’s charge should have been sustained. Same was based on the supposition that the officers were making an illegal arrest. We do not think they were, under the facts, it being affirmed by the officers that when appellant was stopped he told them he had whisky, but in any event this proposition relates to and affects only the admissibility of the evidence given by the officers, and is disposed of by what we have said above.
The eight ground complains of the refusal of a peremptory charge to acquit, and need not be discussed. The court told the jury in the charge that if they believed that appellant “unlawfully” transported intoxicating liquor, to find him guilty. The use of the word “unlawfully” in such connection was not error. This is appellant’s tenth ground.
We see nothing in the facts calling for a charge on circumstantial evidence. The liquor was in appellant’s car. He was not only seen driving the car on the highway but admitted that he had driven it. His defense, as appears from his testimony, was that he did not know the liquor was in the car. The question of lack of knowledge was appropriately submitted in the charge. The court properly limited the jury’s consideration of the fact that appellant had been charged with another felony, to the question of his credibility, if they believed it affected same.
Being unable to agree with any of appellant’s propositions, the motion for rehearing will be overruled.
Overruled.