On Motion for Rehearing.
LATTTMORE, XResponding to the insistence of appellant in his motion, we have again considered bill of exceptions No. 3, whose contents are not entirely clear to us. Appellant was taken before the justice of the peace soon after his arrest by the officers for alleged illegal possession of intoxicating liquor. Giving most favorable inference to the averments in said bill of exceptions, it appears that he made a statement before the justice of the peace upon said hearing in the nature of the voluntary statement referred to by articles 247, 248,1925 Code Cr. Proc. This statement was reduced to writing, but appellant refused to sign it. Its contents were not offered in evidence. Appellant while a witness on this trial testified, in substance, that one Tracy owned the whisky found in appellant’s possession by the officers, and that Tracy had left it at appellant’s house the night before the raid and appellant’s arrest. He was asked on cross-examination if he said anything in his above-mentioned voluntary statement before the justice of the peace of the fact that Tracy had left said whisky at his house. Conceding that it is sufficiently shown by the bill that he was asked if he made such statement, and admitted that he did not, we have concluded that we were in error in holding this admissible. Kerry v. State, 17 Tex. App. 178, 50 Am. Rep. 122; Pineda v. State, 100 Tex. Cr. R. 637, 273 S. W. 859; Amayo v. State, 108 Tex. Cr. R. 346, 300 S. W. 935.
Having concluded this evidence to be inadmissible, and being of the further opinion that it was hurtful to appellant, the .motion for rehearing will be granted, the judgment of affirmance set aside, and the judgment of the trial court now reversed, and the cause remanded.