Martini v. State , 104 Tex. Crim. 238 ( 1926 )

It is now made to appear that appellant secured from the judge an order extending the time for filing bills of exception beyond the time first allowed, and that they were filed within the period of the second extension, and should be considered.

Objection was interposed to the officer testifying with reference to what was found and seized as the result of his search because a report thereof was not made in compliance with Article 692, C. C. P. (1925). The point has been decided against appellant in Austin v. State, 97 Tex.Crim. Rep.,261 S.W. 1035; Kimbrough v. State, 272 S.W. 453; Burns v. State, 268 S.W. 950; Reynosa v. State, 272 S.W. 452; Skinner v. State, 274 S.W. 133.

It is shown by bills two and three, with the qualifications thereon that the sheriff and his deputy made two trips to appellant's premises. On the first one they found a still and 12 barrels of mash in his pasture. The still was not connected up. They watched from one-thirty o'clock in the afternoon until nine that night but no one came to the still. They left but returned before daylight the next morning. The still was in the same condition, yet unconnected. The officers resumed watch. About eight o'clock appellant and one of his small boys came to the still. Appellant began cutting wood. The officers could hear the rattling of vessels at the still and see the smoke from the fire. After waiting a while the officers went from their place of concealment to the still. It was then connected up; mash was in it and fire under it. The evidence is that when they went up to the still appellant had a talk with the sheriff, wanting him to just overlook it, tear the outfit up, drop it and say nothing about it. This evidence was objected to on the ground that appellant was under arrest at the time he made the statement. The court admitted the evidence on the ground that it was res gestae. That he was correct in the ruling does not appear questionable. Broz v. State, 93 Tex.Crim. Rep.,245 S.W. 707; Boortz v. State, 95 Tex.Crim. Rep.;255 S.W. 434; Rayburn v. State, 95 Tex.Crim. Rep.,255 S.W. 438; Bell v. State, 92 Tex.Crim. Rep.,243 S.W. 1095; Foster v. State, 276 S.W. 928; Goforth v. State,273 S.W. 845.

The only remaining bill complains that the district attorney was permitted to ask leading questions which, together with the answers, are shown in the bill by the court's order. This bill is not discussed in appellant's brief. However, we have examined it and find nothing of such serious import as calls for reversal.

Having considered appellant's case upon the merits, and finding nothing in the bills of exception leading to the conclusion that our former order affirming the judgment should be changed, the motion for rehearing will be overruled.

Overruled.