dissenting.
I am unable to agree that the statement of appellant to the officer was in the nature of a confession or that its admission in evidence is shown to be error.
*104In Baimbridge v. State, No. 33,737, decided November 15, 1961, we observed that the statement of the defendant: “I will kill you for this” was not in the nature of an oral confession.
In Bates v. State, cited in the majority opinion, the defendant stated that he knew he was drunk but wanted the officer to take him home. The only question in Bates v. State was whether the court erred in admitting the statement as res gestae. The reasons stated in my dissent would be applicable here if appellant’s statement was in the nature of a confession.
The opinion reversing the conviction is in conflict with Garland v. State, 157 Texas Cr. Rep. 4, 246 S.W. 2d 204. There Bill of Exception No. 2 complained that Knox, one of the arresting officers, was permitted to testify that he asked the defendant Garland if he had anything to drink, and Garland replied: “I have had a few social drinks.” We said: “In the absence of a showing in the bill that the conversation was not part of the res gestae, no error was shown.” On rehearing it was urged that the statement of the defendant was not a part of the res gestae. Judge Morrison disposed of this contention as follows:
“We have re-examined the bill and find the only grounds of objection set forth therein to be: ‘that the oral statements made by the defendant after he had been detained and stopped by the officers were made while under arrest and inadmissible.’ It follows that the question of whether the statements were or were not a part of the res gestae was not before the trial court and therefore cannot be raised here.”