Appellant contends that in determining the admissibility of her statement made to the officer to the effect that the mash, etc., was hers and not Atkinson's, we overlooked the rule in Bradberry's case, 22 Tex.Crim. App. 273. We have again examined that authority. Its facts show that a party who got to the scene of the difficulty after it was over asked the accused about it, and was told to catch the horse of accused and he would tell him. The catching of the horse occupied some moments. What was afterward said by the accused was held to beres gestae. This rule is in nowise in conflict with the one here announced. The officers found a still operating or mash fermenting, and the appellant came up. A man was accompanying her and driving the car. Apparently without any questioning and voluntarily she says, "This mash, etc., is mine. This man has nothing to do with it." We have here the present and immediate fact of possession of a still and mash presented, and the thing itself speaking through the accused in that she at once announces that the possession and ownership are hers. Her statement appears to us to be instinctive. Copeland v. State, 249 S.W., Rep. 495, Jim Copeland was found in possession of a still in operation. Drew Copeland came up and said, "This is mine", or words to that effect. On Jim's trial he offered proof of Drew's said statement. It was rejected. We reversed the case and said it was admissible as res gestae. If a statement made at the time the possession came in question by a third party was admissible on behalf of the accused in that case, we are wholly unable to see why a statement made by the accused herself, when the issue of posession of the still which is present and operating or the mash is present first present itself, would not be properly admissible. *Page 550
Referring to appellant's remark about the familiar appearance of the still, as testified to by the witness Trickey, we observe that any statement made by a party to a law suit which sheds light on the issues involved, may ordinarily be offered by the opposite party, it being in the nature of a declaration against interest. This rule is in nowise in conflict with the other well founded rule which holds that if such remark be offered by the party making it, same might be rejected as self-serving.
The asking of a question whose affirmative answer might be hurtful to the accused, would ordinarily present no error when complained of in a bill of exceptions unless the answer is given, and if given and answered in the negative, as in the case in appellant's bill of exceptions No. 5, no error be made to appear.
The evidence amply supported the verdict hence no error was committed by the learned trial judge in refusing appellant's motion for an instructed verdict.
The motion for rehearing will be overruled.
Overruled.