Appellant was convicted in the District Court of Collin County of the manufacture of intoxicating liquor, and his punishment fixed at two years in the penitentiary.
On the day in question two officers went to appellant's house and finding no one in the residence, proceeded to a near-by outhouse. The door of this house was closed and fastened but not locked. Effort to open the door was resisted from the inside but the officers pushed it open and went in. There was no one in the outhouse except a negro. The windows and cracks of the building were so covered as that when the door was shut the interior of the building was darkened. The officers found in said outhouse a still in operation. Whisky was running out of the still. There were thirteen 60-gallon barrels of mash in said room. There were twenty-one or twenty-two gallons of whisky already manufactured, in said room. The officers closed the door and waited and presently appellant came, pushed the door open and said, "How are you getting along?" He called no name but about that time saw one of the officers and said, "Mack, what in the hell are you doing here?" The officer replied, "I am sampling some of your whisky." About this time another officer stepped up and said, "Is this Ray Stone?" and appellant replied, "Yes," and the officer said, "McCollum is my name," and appellant said, "Well, I guess you are another law, and I guess you have found what you are looking for." The officer replied that they had a search warrant for the place and appellant repeated the statement, "Well, I guess you have found what you are looking for," and further said, "Now that negro ain't got a damn thing to do with this; I just got him to stay here and take care of this a few minutes while I run up town with my wife." The officer then got out the search warrant and started to read it to appellant who told him it was not necessary, but presently he asked to see it and when it was handed to him he read it. In the course of the conversation just detailed appellant said, "This is my outfit and nobody's but mine." It was also in testimony that when appellant said, referring to the negro who was in the outhouse, "This negro hasn't got a thing in the world to do with this, it is mine, — I don't want you to take him off at all," one of the officers started across the street to another negro over there and that appellant told him not to bother that negro, that he did not have anything to do with it, that he did not allow him on that place, that he had had some trouble with him, and that he did not have a thing to do with this whisky. *Page 366
The first complaint in the record is to the admission in evidence of what was said by appellant when he pushed the door open and came into the outhouse. The objection was that appellant was under arrest. This court has frequently held such testimony admissible under the rule of res gestae. The liquor was in process of manufacture in the presence of appellant and the officers. He asserted it to be his. What was said and done at the time would be res gestae of the transaction. Upon the same reasoning appellant's bills of exceptions Nos. 2, 3 and 4 may be disposed of. It might be said in reference to bill of exceptions No. 4 that while same states that certain testimony was objected to because appellant was under arrest, there is nothing in the bill which remotely establishes the fact of an arrest at the time, and it has been frequently said by this court that we cannot take the statement of the grounds of objection in a bill of exceptions, as establishing the truth of such grounds, nor will the other parts of the record be looked to to ascertain whether the grounds stated are established. The bill must be complete within itself.
The observations just made hold good as to bill of exceptions No. 5 wherein it is stated that "The defendant objected to the admission of said testimony because the same was not in rebuttal of any evidence brought out by defendant, and because the defendant was under arrest at the time he made said statements if he made them, and because the officer had a warrant for him at the time and would not have let him get away and any statement he might have made while under arrest would not be admissible, which objections were by the court overruled, and said testimony was permitted to go to the jury. To which action of the court defendant excepted," etc. As above stated, it is the rule that we look to the particular bill of exceptions for a verification of the grounds of objection stated; if in this case we look to the record otherwise, it would be found that this was a part of the same conversation that occurred in the room upon the arrival of appellant and was a part of the res gestae.
Bills of exception Nos. 6, 7 and 8 set out complaint of the rejection in evidence of statements made by third parties supposed to support the proposition that Ras Walton had been manufacturing liquor in said outhouse, the effect of which testimony would appear to be to cast some doubt upon appellant's connnection with the criminal transaction. We have examined the authorities cited by appellant but in the light of the facts before the court in each of the cases cited, which affect the rule there laid down; and in view of the other decisions of this court later reviewing those decisions and laying down what we think to be a correct rule, we cannot agree that said authorities cited justify us in holding that the court should have admitted such testimony. In Stayton v. State, 248 S.W. Rep., 350, we discuss the rule laid down in Greenwood v. State, 84 Tex. Crim. 548, and in *Page 367 Walsh v. State, 85 Tex.Crim. Rep., and also in Blocker v. State, 55 Tex.Crim. Rep., and it is there suggested that it is only in cases dependent upon circumstantial evidence that such testimony may sometimes be admitted as a circumstance. We would lay down no hard and fast rule in reference to such testimony, but its admissibility would depend upon the facts in each case. The question has been frequently raised of late regarding the admissibility of such testimony, and we call attention to the Blocker case, supra, as discussed and annotated in 131 American State Reports, 778, discussing the admissibility of confessions or statements made by third parties. We quote from a note in the annotation as follows:
"The general rule in respect to the admissibility of confessions or admissions is well settled, although, strange to say, it has been necessary for the courts to repeatedly declare the rule in the sames state, so persistently has the rule been assailed. The general rule laid down by the courts is that a confession or admission on the part of a third person that he committed the crime which the defendant is charged with having committed is mere hearsay, and not admissible in evidence in favor of the defendant where it does not constitute a part of theres gestae; Smith v. State, 9 Ala. 990; Snow v. State, 54 Ala. 138; Levison v. State, 54 Ala. 520; Snow v. State, 58 Ala. 372; West v. State, 76 Ala. 98; Welsh v. State, 96 Ala. 92, 11 So. 450; Oddo v. State, 152 Ala. 51, 44, South. 646; People v. Hall,94 Cal. 595, 30 P. 7; Mora v. People, 19 Colo. 255,35 P. 179; Lyon v. State, 22 Ga. 399; Flanegan v. State, 64 Ga. 52; Daniel v. State, 65 Ga. 199; Kelly v. State, 82 Ga. 441,9 S.E. 171; Delk v. State, 99 Ga. 667, 26 S.E. 752; Lowry v. State,100 Ga. 574, 28 S.E. 419; Robinson v. State, 114 Ga. 445,40 S.E. 253; Reilly v. State, 14 Ind. 217; Bonsall v. State, 35 Ind. 460; Dye v. State, 130 Ind. 87, 29 N.E. 771; Bauk v. State,148 Ind. 238, 46 N.E. 127, 47 N.E. 465; Davis v. Commonwealth, 95 Ky. 19, 44 Am. St. Rep., 201, 23 S.W. 585; Bacigalupi v. Commonwealth, 30 Ky. Law Rep., 1320, 101 S.W. 311; State v. West, 45 La. Ann. 14,12 So. 7; State v. Young, 107 La. 618, 31 So. 993; Commonwealth v. Chabbock, 1 Mass. 144; Commonwealth v. Elisha, 3 Gray, 460; Commonwealth v. Densmore, 12 Allen, 535; Commonwealth v. Chance, 174 Mass. 245, 75 Am. St. Rep., 306, 54 N.E. 551; People v. Stevens, 47 Mich. 411, 11 N.W. 220; State v. Evans, 55 Mo. 460; State v. Duncan, 116 Mo. 288, 22 S.W. 699; State v. Hack, 118 Mo. 92, 23 S.W. 1089; State v. Levy, 90 Mo. App. 643; Mays v. State, 72 Neb. 723, 101 N.W. 979; Greenfield v. People,85 N.Y. 75, 39 Am. St. Rep., 636; State v. May, 15 N.C. 328; State v. Duncan, 29 N.E. 236; State v. White, 68 N.C. 158; State v. Haynes, 71 N.C. 79; State v. Bishop, 73 N.C. 44; State v. Baxter, 82 N.C. 602; State v. Beverly, 88 N.C. 632; State v. Gee,92 N.C. 756; State v. Fletcher, 24 Or. 295, 33 P. 575; Rhea *Page 368 v. State, 10 Yer. 258; Sible v. State, 3 Heisk. 137; Peck v. State, 86 Tenn. 259, 6 S.W. 389; Bowen v. State, 3 Texas App. 617; Holt v. State, 9 Texas App. 571; Horton v. State (Texas Crim. App.), 24 S.W. 28; Hodge v. State (Texas Crim. App.),64 S.W. 242; United States v. McMahon, 4 Cranch, C.C. 573, Fed Cas. No. 15699; United States v. Miller, 4 Cranch, C.C. 104, Fed Cas. No. 15,773; United States v. Mulholland, 50 Fed., 413.
The decision in the principal case (Blocker v. State, 55 Texas Crim. 30, ante, p. 772, 114 S.W. 814), although not overruling previous cases in Texas, concurring in the general rule stated above, has engrafted an important exception to the rule, which practically amounts to this, namely, that where the evidence on the part of the prosecution is wholly circumstantial, and circumstantial evidence is adduced by the defendant tending to connect a third person with the commission of the offense, his confessions or admissions of guilt will, under such circumstances, be admissible. Hence in considering the soundness of the doctrine announced by the Texas court, it is important to look to the reasons assigned by the courts for the general rule on the subject."
The State's case in the case before us is not one dependent on circumstantial evidence alone, and we adhere to the rule in Stayton's case and Greenwood's case, supra.
Bill of exceptions No. 9 complains of the court's refusal of a new trial based in part upon alleged misconduct of the jury. It was asserted that the jury discussed the failure of appellant's wife to testify, and also discussed the fact of his former conviction. We do not think the reference by the reference by the jury to the failure of appellant's wife to testify, constitutes any error. In referring to the other ground of complaint, we observe that it was in testimony by several of the jurors upon the hearing of the motion for new trial, that they knew from the evidence introduced on this trial that there had been a former trial of the case. The record is replete with questions asked various witnesses about their testimony given upon a former trial. After the jury had agreed upon a verdict of guilty and had practically agreed upon the penalty, we gather from the testimony that one juror said to another that he would bet him that the verdict they were giving in this case would be lighter than the verdict on the former trial. The other juror replied that he would bet him that it would be more if the former jury gave him anything Each of the jurors said that they knew nothing about what was the result of the former trial and did not discuss the same any further than is evidenced by the substance of what we have just set out, and that there was no other reference to the result of the former trial. After the jury were discharged they met one of appellant's attorneys and asked him what the result of the former trial was and upon being *Page 369 informed there were some remarks made back and forth by the jury concerning this. We think the learned trial judge did not abuse his discretion in declining to grant the motion for new trial upon the grounds mentioned.
We regret that we cannot agree with learned counsel for appellant in the contentions ably briefed and argued by them on his behalf. To us the facts seem to fully justify the verdict of the jury and the record to reflect a fair and impartial trial.
The judgment of the trial court will be affirmed.
Affirmed.