¶1 ON MOTION FOR REHEARING.
¶2 Appellant makes an able and ingenious argument against the correctness of our conclusion that his statement to officer Griggs, “Leave the boy alone, it is mine”, was res gestae. We might observe in passing that our uniform holding is that if testimony be of a res gestae statement of the accused, the fact of his being under arrest would not suffice to reject it. Branch’s Ann. P. C., p. 52 for authorities.
¶3 • Mr. Underhill in the third edition of his valuable work on Criminal Evidence, p. 218, devotes Chap. 16 to a discussion of res gestae, and, among other things, after apparently drawing a distinction between the doctrine as applicable to a crime which consists of a single act, such as murder, rape, etc., and one which involves a continuity of acts, such as the crime before us, says: “No general rule can be enunciated as to what declarations do or do not constitute a part of the res gestae. The main question is, — are they relevant to and do they explain and illustrate the facts of the transaction in issue.” Again, on page 221 of said work it is said: “The spontaneous unpremeditated character of the declarations, and the fact that they seem to be the natural and necessary concomitants of some relevant transaction in which their author was a participant, constitute the basis for their admission as evidence. ’ ’
¶4 The case before us is one for making whiskey. The officers found a still in operation on appellant’s premises a short distance from his house. His nine year old son was at the still and doing some things connected therewith. Sled tracks went from appellant’s well to the still and a sled was found there. After finding these things the officers went to appellant’s house and said, “Well, we found your still.” Appellant said, “You didn’/t catch me down there.” The officers then said they would go back and get the boy whom they had caught making it, and appellant said, “Let the boy alone; it is mine.” Under the facts of this case the statement of appellant *12 seems natural, spontaneous, and instinctive. He was confronted with, the fact that a crime was being committed on his premises and in juxtaposition to his home and that his nine-year-old boy was connected with it. He made the statement complained of. No leading 'questions were put to him, and no suggestion or threats of any character appear. He made an evasive statement, and upon the officers appearing to accept it and as they were about to start back to where they had left the boy, etc., the facts and the truth of1 the situation spoke through appellant and he said “Let him alone, it is mine.” We see no reason to conclude our former holding in this regard in anywise erroneous.
¶5 The motion for rehearing will be overruled.
¶6 Overruled.