ON appellant’s motion for rehearing.
GRAVES, Judge.Appellant complains relative to the holding in our opinion of affirmance as to the arrest of appellant without a warrant.
Without going into the facts seriatim, we think they were abundantly present in the actions of appellant as shown by the proof that he was a “person found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or (that they) threatened to commit some offense against the law.” Under such circumstances we think his arrest without a' warrant was justified under the law.
Appellant appears to be concerned with the following statement in the opinion affirming this judgment, as follows: “This evidence was taken sena rate and apart from the jury but should have been included in the statement of facts.” His concern being over the definition of a statement of facts found in Art. 760, C. C. P., subdiv. 5, wherein such is defined as including only the facts adduced upon the trial on the issue of guilt. Oftentimes it becomes necessary for a jury to be retired and the admissibility of evidence is gone into in the presence of the trial court, .which matter is often decided by him, and in the event this ruling is challenged by the accused, the testimony taken in the court’s presence, with the jury absent, should be brought before this court to aid us in a review of such action. We think appellant need fear-ho alarm over the statement, in our opinion...Many times' testimony relative to *303peremptory or dilatory motions prior to the trial, during the trial, and on motions for a new trial, is often presented to this court and considered in order to give us a knowledge of the matter passed upon by the trial court, and over which some issue might be made.
We think this appellant was acting in such a manner as to warrant his arrest without a warrant under the ordinance of the City of Abilene, and the testimony discovered thereby was admissible.
The motion is overruled