Graves and Tucker v. State

Offense, the unlawful manufacture of intoxicating liquor; penalty, five years in the penitentiary.

Officers driving along a road were fired upon by appellant Tucker. They prepared to return the fire, whereupon Tucker threw his pistol away and surrendered. About this time appellant Ben Graves was observed running at a distance of about a hundred yards away. Officers thereafter found a still in operation some twenty-five or thirty feet from where Graves was first observed. Whiskey was running from this still. There was present around same forty-three barrels of mash, 115 or 120 empty barrels, some whiskey kegs, three tents, bedding and groceries and about thirty gallons of whiskey in a barrel. Officers gave chase to appellant Graves and began shooting at him, killing a dog which ran by his side, whereupon Graves stopped and surrendered. Officers immediately brought him back to the still. About twenty minutes had elapsed. The officers asked him to whom the still belonged and for whom he was working, to which he answered that the still belonged to Joe Moore and that he was working for Moore.

Graves was under arrest at the time and appellant presents by proper bills of exception the admissibility of the statements of Graves last mentioned, claiming that same were made while Graves was under arrest and unwarned and that they were not res gestae. The chief contention relied on by appellant Graves to destroy the res gestae character of these statements is his claim that they were made in answer to questions. It has been many times held that this alone will not take them out of the rules of res gestae. Boothe v. State, 4 Tex.Crim. App. 211; Williams v. State, 10 Tex.Crim. App. 535; Pierson v. State, 18 Tex.Crim. App. 562; White v. State, 30 Tex.Crim. App. 655; Harvey v. State, 35 Tex.Crim. Rep.; Johnson v. State,46 Tex. Crim. 294; Long v. State, 48 Tex.Crim. Rep.; Hobbs v. State, 55 Tex.Crim. Rep.; Hickman v. State,145 S.W. 914; Johnson v. State, 149 S.W. 165. The transaction testified to by the officers was a continuous one, beginning with the shooting and continuing without interruption to the time of the said statements of appellant Graves. They were made at the still while whiskey was running from same and just after appellant's apprehension and at a time when the circumstances would indicate that he was in an excited state of mind. The res gestae rule has been so extended from its original limits that it is now impossible under the authorities to precisely and accurately define it. Originally such a statement must have been strictly contemporaneous with the transaction to which it related. Every case under present authorities must be measured by its own particular facts. Though the present question is not free from difficulty, the Court is of the opinion that taking the record as a whole the statements appear to be of that instinctive and spontaneous character which bring them within the modern rule of res gestae and if so, they were admissible, though appellant was under arrest. Bevers v. State, 9 S.W.2d 1040, and authorities there cited.

The sufficiency of the evidence is vigorously questioned. In addition to the incriminative facts briefly set out above, the officers testified that appellant Graves had mash on his pants. Appellant Tucker pleaded guilty. In our opinion the evidence was sufficient to sustain the conviction.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.