Appellant was convicted in the district court of Van Zandt County of manufacturing intoxicating liquor, and his punishment fixed at two years in the penitentiary.
Officers went to appellant's premises early one morning armed with a search warrant and upon investigation found in a ravine about three hundred yards from appellant's house, a still in operation. There was a quantity of manufactured whiskey at the still. A small boy of appellant's was present at the time. The officers went to the house of appellant and informed him that they had found his still, and he remarked that they did not catch him there. One of the officers said that they would go back and get appellant's boy who was operating it, whereupon appellant said to them, "Let the boy alone, it is mine."
Appellant's first bill of exceptions complains of the overruling of his application for a continuance, but as qualified by the court we think no error shown.
The next complaint is of the reception on the statement of appellant above set out. It is contended in the bill that appellant was under arrest at the time. The learned trial judge states in his qualification to the bill that he is of opinion that appellant was not under arrest, but he submitted the question to the jury in the charge. Substantially the same complaint appears in bill of exceptions No. 3. In our opinion the testimony was admissible as a part of the res gestae of the transaction, and in such case it was immaterial whether the accused was under arrest or not. In Bell v. State,92 Tex. Crim. 342, a similar statement made under much the same circumstances, was held admissible. See also Coburn v. State, 96 Tex.Crim. Rep., where the accused made a statement, when whiskey was found in the back of a car, that it was his. See also Broz v. State, 93 Tex.Crim. Rep.; Hill v. State, 96 Tex.Crim. Rep.; Qualls v. State, 97 Tex. Crim. 406; Calloway v. State, 244 S.W. Rep. 551.
There are several exceptions to the charge of the court. We think the facts such as called for the submission of the case to the jury upon the law of principals. The still was on appellant's place, and about three hundred yards from his dwelling; track of a sled in which water had been hauled led from appellant's well down to the still. A little boy nine or ten years of age was at the still and attending to it at the time it was discovered. He was the son of appellant. It would be so contrary to human experience to think that a mere child such as this could initiate and operate a still as to make it unbelievable. There is no suggestion that any one other than appellant was connected with the child. In the statement made to the officers, when they threatened to go and take the boy, appellant said, "Let him alone, it is mine." This fully justified the submission of the law of principals. *Page 11
It is true that in the case of Bingham v. State, 262 S.W. Rep. 749, we discussed at length the rules applicable to the question of reception of statements made by the accused when under arrest and the submission of that issue to the jury. In our opinion this question passes out of the instant case because of our conclusion that the evidence was admissible as res gestae regardless of whether or not the accused was under arrest. These are the two issues briefed by the appellant, and are the only ones deemed necessary by us to discuss.
Believing the appellant has had a fair trial, and that no error appears in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.