(concurring).
I agree to the reversal of this conviction but feel that I should make my position clear because of my opinion on rehearing in Haley v. State, 157 Texas Cr. Rep. 150, 247 S.W. 2d 400. In Haley, the report of the injured child was made to the Copelands some hours after the assault. We were careful to point out that the injured child remained in the presence of the accused, and necessarily was intimidated by him, which fact explained her failure to speak sooner. We have no such facts before us here. Tommy left the accused and was in the presence of his mother some three and one-half hours before he made the statment which is contended was part of the res gestae. It must be remembered that if the statement or declaration is that of the witness speaking about or narrating the facts, it is not a part of the res gestae. Williams v. State, 145 Texas Cr. Rep. 536, 170 S.W. 2d 482. The declaration must be so spontaneous that the court can fairly say that it is the incident speaking through the actor.
Judge Davidson does not discuss appellant’s confession, and I think rightly so, because it adds nothing to the jurisprudence to recite the details of a confession unless it is corroborated. In the case at bar, it was not corroborated unless Tommy’s statement at five o’clock was a spontaneous outcry following something that occurred shortly after one o’clock. The facts show that it was not.
I concur.