Appellant argues forcibly the proposition that statements made by him to the officer at the time he was arrested and found in possession of a pistol, should have been rejected because made while under arrest. This feature of the case was discussed in our former opinion. Our attention is attracted on this consideration to the fact that the statements made by appellant were part of the res gestae of the transaction. Appellant defended in this case solely upon the proposition that in having the pistol in his possession he was acting for his mother who had told him to take it to the place where he was arrested and there deliver it to her so that she might sell it. He thus sought to ascribe an innocent motive and purpose to what would otherwise be a guilty act. This court has said in several cases that statements made by a party to a transaction at the time, from which the character, motive and object may be gathered, is res gestae. Russell v. State, 11 Texas Crim. App., 295; Stockman v. State, 24 Texas Crim. App., 392; Upton v. State, 48 Tex.Crim. Rep.. It would hardly seem debatable that if when found in possession of the pistol and questioned, appellant had stated that he was carrying the pistol home from some place where he had legitimately gotten it, or that he was taking it to be repaired, or that he had just bought it — this would be admissible as part of the res gestae and explanatory of his possession, purpose, etc. It would seem further without dispute that one who denies his possession of a pistol when questioned, *Page 104 could not escape the weight of such denial if he later defended upon the proposition that he had it for a legal purpose.
The question complained of in bill of exceptions No. 2, viz: as to whether the arresting officer knew that another officer was present, would seem immaterial in the light of what we have just said.
Argument which expresses the personal opinion of the prosecutor as to the guilt of the accused but is not otherwise objectionable, has not been held sufficient ground for the reversal of the case. See Sec. 363, Branch's Annotated P. C., for authorities.
Appellant earnestly insists that the facts are not sufficient. There could be no dispute of the fact that appellant carried the pistol, for one was found on his person under two shirts which he was wearing. The story told by him and his mother was naturally one coming from interested witnesses. Their claim was that the mother, on the day before, told him and "Willie" to go over to the home of Ed Davis, where her pistol had been for some time, get it and bring it to Hillsboro, where she would meet them Saturday and sell the pistol. If the mother's pistol had been at the home of Ed Davis, and if appellant went there and got it on the occasion in question, this fact would have been susceptible of proof by disinterested witnesses and would have strongly corroborated appellant's claim. If "Willie" had appeared and testified that he or she went with appellant to Davis' home and got the pistol, this would also have corroborated appellant's plea. The fact that appellant's mother did not meet him at the place in Hillsboro, where they say they were to meet, was made to depend on the fact that her car broke down. She is not corroborated in this proposition by any other parties. The claim made by both appellant and his mother that her instruction to him was to bring the pistol to Hillsboro and there deliver it to her, was contradicted by testimony of the sheriff, who said that appellant's mother told him that she had instructed appellant to take the pistol home. These facts seem to us to justify the jury in rejecting the testimony offered in behalf of the defense and in finding appellant guilty.
The motion for rehearing will be overruled.
Overruled. *Page 105