#### WILLIAMS v. STATE.

No. 24584.

Court of Criminal Appeals of Texas.

Jan. 11, 1950.

Rehearing Denied March 15, 1950.

'Ben F. Mooring, Paris, for’ appellant.

George P. Blackburn, State’s Atty., of Austin, for the State.

WOODLEY, Judge.

Appellant was convicted in the County Court of Lamar Cqunty for the offense of -possession of whiskey 'for the purpose of sale in said county, a dry area, and the jury assessed his punishment at a fine of $350, and'thre.e months in jail.

Armed with a- search warrant duly issued on their, affidavit alleging that such place was a place where alcoholic beverages were unlawfully possessed, kept and sold in violation of law, two deputy sheriffs searched a tourist cabin in the City of Paris, and there found and seized several bottles of whiskey.

*225The officers turned off the lights and -remained inside waiting for the party who had possession of the key to the -cabin to return. Twenty-five or thirty minutes later appellant and a girl arrived, the girl having a key, and after she had attempted to do so and failed, appellant opened the door with the key, and both entered.

Upon observing the officers, both of whom were well known to him, appellant remarked, “This -beats all, a man -can’t get out and take a drink without having visitors.” Appellant was laughing at the time, and the officers jokingly replied, “What’s the -matter Paul, don’t you like visitors?” Appellant then said “I bought a half case to sell, but got to drinking, and -had not sold any.”

Proof'was made that Lamar County is a dry area.

Appellant complains of the introduction of testimony of the officers and of the introduction of the whiskey -found a-s a result of the -search, his -contention being that the description of the' premises as -contained in the affidavit for the search warrant and in the warrant itself was insufficient. With this contention we do not agree.

The premises to be -searched is described in the affidavit,and in the warrant' as “a certain private dwelling, located in Lamar -County, Texas, -described as a tourist cabin, the same being No. 27 at Lamar Courts in the -City of Paris, Lamar County, Texas.” It is shown by the record that the' tourist -court named was generally known to the residents and citizens of the City of Paris, and that there was no other place in Lamar County known as Lamar Courts. It was also -shown that there was only one cabin No. 27 in the tourist camp known as Lamar -Courts.

Appellant’s statement to the officers was to the effect that he claimed the- whiskey 'found in the cabin. Bill-s of exception as to the admissibility of such statement were-qualified by the trial judge and -no exception was reserved to such qualification.

As qualified, the bills show that the statement was made by the appellant upon entering the -cabin. Under' the facts as shown by the -record and as reflected in the qualifications of the bill, we hold that t-he statement of appellant was a part o-f the ■res gestae, and therefore admissible. See Weatherly v. State, 109 Tex.Cr.R. 548, 5 S.W.2d 986; and Waltrip v. State, 134 Tex.Cr.R. 202, 114 S.W.2d 555.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

On Motion for Rehearing

GRAVES, Judge. '

Appellant again complains relative to the claimed inadequacy of the search warrant under which this liquor was found. We think the original opinion properly disposed o-f such contention.

Upon -opening the door of this -Cabin No. 27 in the Lamar Courts, appellant made the statement as set -forth in the original opinion relative to the purchase of half a case of whisky for the purpose of sale, there being six one-hal-f pints, and one whole pint of whi-sky found therein. Evidently he was talking about the whisky there present. Appellant was charged with the possession of whisky -for the purpose of sale in a dry area, and claims -he was under arrest at the time'he made the remark about the purchase of half a -case of whisky. If su-ch be true, we think that the doctrine of res gestee over-rides the •fact of appellant’s probable arrest. See Plunk v. State, 101 Tex.Cr.R. 9, 274 S.W. 156, 157, wherein it is said:

> “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.Cr.R. 342, 243 S.W. 1095, a -similar -statement, made under much the same circumstances, was •held admissible. See, also, Coburn v. State, 96 Tex.Cr.R. 25, 255 S.W. 613, where the accused -made a statement, when whisky was found in the back of a car, that it was his. See, also, Broz v. State, 93 Tex.Cr.R. 137, 245 S.W. 707; Hill v. State, 96 Tex.Cr.R. 364, 257 S.W. 262; Qualls v. State, 97 Tex.Cr.R. 406, 261 S.W. 1033; Calloway v. State, 92 Tex.Cr.R. 506, 244 S.W. [549], 551.”

*226Appellant being charged with the possession of whisky for the • purpose of sale, we think his statement relative to such possession was res gestae thereof. We do not think the trial court was in error in failing to charge relative to the possession of this whisky upon the part of Flora Nell McNeal. She made no statement nor laid any claim to the liquor there present. The mere fact of her presence in company with appellant and naught further shown would not raise any presumption relative to her possession for the purpose of sale of the liquor toward which appellant seemed to direct his remarks in the presence of the officers. Appellant placed her without the suspicion of being the owner or possessor of such liquor for the purpose of sale.

We think the original opinion properly disposes of this cause, and the motion for a rehearing will therefore be overruled.