In his motion for rehearing appellant renews his complaint of the ruling of the court in receiving the testimony of the witness Andrew Stewart to the effect that in his presence appellant said to a girl: "I killed my woman." As understood, this occurred at the time that Stewart *Page 608 conducted appellant to the abode of the sheriff and before appellant was delivered to the sheriff. Stewart's testimony is in substance that while walking along the railroad track he observed a man hiding whom he finally recognized as the appellant. Appellant stated that he was hiding until the moon went down in order that he might safely go and give up to the sheriff. When appellant expressed fear that he might be injured in going to the office of the sheriff, Stewart agreed to conduct him there and protect him from harm. Appellant asked Stewart if he was an officer and received a negative reply. He also asked Stewart if he had a pistol. Stewart replied that he did not. When appellant was asked if he had a pistol, he said that he did and delivered it to Stewart.
W. A. Smith, who we understand to be the sheriff, testified:
"I heard that Brijido had done the shooting, and he was the one that I was looking for. I don't remember whether I saw the defendant that night or the next day, but Andrew Stewart caught him that night and brought him over here and locked him up in jail."
The declaration of the appellant to the young lady that "I killed my woman," was made upon inquiry made by the girl at the time. As we understand from the record, Stewart conducted appellant to the home of the sheriff and put him (appellant) in jail. Upon reconsideration, the circumstances attending the apprehension of the appellant and his incarceration in jail by the witness Stewart are regarded as rendering the appellant's declaration, — "I killed my woman" — as inadmissible for the reason that while not actually under arrest, the surroundings were such as to impress him with the view that he was in custody. The statute (Arts. 727 and 727a, C. C. P.) denying the admissibility of inculpatory evidence obtained from one in custody who at the time was unwarned, would render the declaration mentioned inadmissible. However, in the condition of the record, this court would not be authorized to grant the motion for rehearing and reverse the judgment for the reason that the evidence is conclusive that appellant shot and killed his wife, and there comes no testimony, either from him or his witnesses, justifying the act. The most that can be said is that there is some testimony by way of innuendo or hearsay that appellant and his wife had separated and that his wife had taken up with another man. This was not proved nor advanced by appellant as a defense or in mitigation of the penalty. The evidence that he committed the offense of murder is supported by direct testimony and is not controverted. Because of the *Page 609 error committed in receiving the declaration mentioned, we would not be warranted in reversing the judgment of conviction.
The motion for rehearing is overruled.
Overruled.
I concur in overruling the motion, but am of opinion the testimony was admissible.
LATTIMORE, JUDGE.