#### CASTILLO et al. v. STATE.

No. 19594.

Court of Criminal Appeals of Texas.

March 30, 1938.

Williams & Chapin, of San Antonio, for appellants.

*414Lloyd W. Davidson, State’s Atty., of Austin, for the State.

CHRISTIAN, Judge.

Appellants were convicted of the offense of kidnapping. The punishment assessed against appellant Jose Castillo was 35 years’ confinement in the penitentiary, and appellant Alfredo Castillo was condemned to confinement in the penitentiary for 10 years.

According to the testimony of Herman Popham, the appellants forcibly took charge of him and his truck in the city of San Antonio and carried him to Pear-sall. Threatening to kill him, they demanded that he turn over his money to them. During the entire trip from San Antonio to Pearsall he was under duress. One of the appellants kept gouging him in the ribs with what he believed to be a gun. He testified: “I just sat there scared to death and they threatened to shoot me and everything. The big one told me to turn my money over to them and I told them I didn’t have any money and they said if I didn’t turn my money over to them they would throw me off of the bridge, and they said ‘What did you do with the money you got out of your load you brought to town’ and I told them I paid some bills with that, and they said ‘If you don’t give us some money we are going to kill you,’ and then when we got within about two miles of Pearsall they told me ‘Give us five dollars and we will turn you loose,’ and I told them I didn’t have any money, and so the small one gouged me in the ribs and the big one reached up and slapped me and said ‘You s- of a b-, hand me your money,’ and I told him I didn’t have any *money*and he said *‘Don’t*tell me that, G-d-you, I will kill you.’ ” After they reached Pearsall the truck needed gasoline, and appellants demanded that he sell one of his tires and. buy same. While the truck was parked in Pearsall near the depot, the appellants fell asleep and Popham slipped away. Going to the depot, he immediately reported the fact that he had been held in custody by'the appellants to the station agent, who in turn notified the sheriff. The appellants were immediately arrested while still in possession of the truck.

According to the version of the appellants, Popham voluntarily accompanied them to Pearsall. They made no demand for money and had no intention of taking either his money or truck.

Appellants’ first application for continuance was not sworn to, as required by article 545, C.C.P. Hence it is not in condition for consideration. Smith v. State, 123 Tex.Cr.R. 95, 57 S.W.2d 163.

Bill of exception No. 2 relates to the testimony of .the station agent to the effect that Popham came to the depot in an excited condition and stated to him in effect that two Mexicans had kidnapped ■him. This declaration was made shortly after Popham had freed himself from the custody of the appellants. It was admissible as - res gestae.

Appellants excepted to the charge of the court for its failure to submit their affirmative defense. An inspection of the charge reveals that the defensive theory was adequately submitted.

The judgment is affirmed.

PER CURIAM.

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.