Appellant urges that his statement to officer Harmon was res gestae. To be such, that fact must appear from the record. We re-state the facts: Goods, wares and merchandise were kept in Weaver's store building, which was usually locked. Next door was Piggly Wiggly where Pervin worked. He first saw a car drive up to Weaver's store, three men get out and go around said store. He called Weaver at his home in some five or ten minutes: Weaver came down, saw three men in his store, went to Piggly Wiggly and called the city hall situated some two miles distant. Grant and Fornier answered the call, and drove from the city hall to Weaver's store. They found three men inside Weaver's store. One of them was appellant. These facts seem to establish fully a complete refutation of appellant's claim that he was at said store for such few moments as that he might stll claim to be lawfully on a journey from near Arlington back to Fort Worth on a lawful mission, viz: to get a pistol loaned by him to a friend near Arlington, and return it to a man who had pledged it in Fort Worth. These facts seem to fix three men at Weaver's store during the five or ten minutes before Pervin called Weaver and during the time it took Weaver to come from his home to the store, and while *Page 288 he was looking in said store, going to Piggly Wiggly and phoning to the city hall, also while the officers were driving two miles in going from said city hall to Weaver's place, — all which time must be added to that further time which elapsed before officer Harmon got there from some place not shown, — an indefinite time referred to by him as a few minutes, without any apparent knowledge as to how long the other officers had been there when he arrived. Just how he could know they had only been there a few minutes when he was not there when they came, nor did he see them on their way does not appear. We think the testimony properly rejected.
We have again reviewed the charge in the light of appellant's motion. The court affirmatively and favorably charged on what is claimed to be appellant's affirmative defense, without appellant having taken the stand and laid down any such defense, and where it was only supported circumstantially. We find no ground for the complaint at the charge.
The motion for rehearing will be overruled.
Overruled.