ON APPELLANT’S MOTION FOR REHEARING.
CHRISTIAN, Judge.Appellant insists in his motion for rehearing that we were in error in holding that it was not shown that he was under arrest at .the time he made the declarations concerning his possession of the rings in question. Appellant’s bills of exception relating to the matter were qualified. The qualifications, not having been excepted to, are binding upon this court. The bills, as qualified, are to the effect that the officers to whom appellant made the declarations in question testified that they had no intention of arresting appellant and that it was two days after *117they had their conversation with him relative to the rings before he was arrested. It appears that appellant did not testify that he believed he was under arrest. We quote from Burton v. State, 277 S. W. 390, as follows: “Whatever be the intention of the officer, if he had not arrested accused and accused was not apprised of his intention to arrest him at the time the statements are made, they are admissible, if accused did not reasonably believe himself to be under arrest. It is not altogether the intention of the officer that governs the matter. Many cases are cited by Mr. Branch in his Ann.. Tex. P. C. under section 62, which illustrate the principle just stated.”
The following is taken from Section 62 of Branch’s Ann. Texas P. C.: “Although the officer would not have permitted defendant to depart, yet if defendant did not reasonably believe himself to be under arrest, proof of his unwarned confession is admissible.”
See, also, Hernandez v. State, 129 S. W. (2d) 301.
We are constrained to adhere to the conclusion expressed in the original opinion that the record fails to show that appellant was under arrest.
It might be plausibly argued that appellant’s statements relative to the rings were res gestae. He was apparently still in possession of the rings and concealing them. We quote from Harris v. State, 10 S. W. (2d) 551, as follows: “He (Harris) was in possession of the stolen shoes. His statement was admissible as res gestae of his possession when his right was first challenged. The explanation of possession of property alleged to be recently stolen, made while the possession lasts, if made when the party is first directly or circumstantially called upon to explain, is a part of the res gestae of possession, and as such is admissible against the accused. Underhill’s Criminal Evidence (3d Ed.) Section 471; Wharton’s Criminal Evidence, Vol. 2, Section 761; Perry v. State, 41 Tex. 486; Taylor v. State, 15 Tex. App. 359; Seebold v. State, 89 Tex. Cr. R. 563, 232 S. W. 328. Res gestae is independent of, superior to, and cannot be restricted or limited by the rules relating to confessions or admissions made after arrest. Gowans v. State, 64 Tex. Cr. R. 401, 145 S. W. 614.”
Appellant contends that the evidence is insufficient to show that he knew the rings were stolen. Appellant’s declaration to the officers, when questioned about the rings, to the effect that “it was pretty big stuff and that he didn’t want anybody else in trouble” indicated guilty knowledge. Again, according to the testimony, appellant inquired whether any charges had been *118filed against him. Again, appellant went to the county attorney and said to him: “I will plead guilty to a misdemeanor; this is pretty big stuff.” According to the testimony of F. G. Mills, the confessed thief, when he sold appellant one of the rings appellant told him to keep his mouth shut. Later, .according to the witness’ testimony, appellant asked him, in effect, whether the officers had said anything to him.
Looking to the testimony in its entirety, and taking into consideration the value of the rings, as mentioned in the original opinion, we would not feel warranted in holding that the evidence touching appellant’s knowledge that the rings were stolen is insufficient.
The motion for rehearing is overruled.
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.