¶1 ON MOTION FOR REHEARING.
¶2 English and Phipps were partners in business. On the night of the robbery English, Kelly and Boone were in the store playing dominoes. Parties entered the store, robbed English of about thirty dollars, which they took off his person, and took about $170 from the cash register. Immediately after the robbers went out of the store English said to Kelly and Boone that he knew appellant was one of the robbers, and that he (English) was going to get his gun and follow them. Phipps was not in the store when the robbery occurred, but reached it between five and ten minutes later; English then made to him practically the same statement about appellant being one of the robbers as he had made to Boone and Kelly. *632 These statements of English relative to appellant’s identity were testified to by English himself and also by Boone and Kelly. Appellant renews his contention that admitting proof of English’s statements was error calling for a reversal. In further reviewing this question we observe that appellant himself seems to have first gpne into the subject. Upon direct examination the state confined itself to having English detail the facts of the robbery and testifying that he knew appellant was one of the robbers. On cross-examination appellant elicited from English the following: “The first man I told that this defendant, H. A. Clements, robbed me was Elbert Phipps — no, I will take that back; I told Boone and Kelly just after they went out that it was Cork (appellant).” Having opened up the subject it appears appellant wks in no position to complain when the state on re-direct examination interrogated the witness about the same matter, and later asked Boone and Kelly about the conversation that appellant himself had introduced.
¶3 But waiving the foregoing suggestion, we have again examined into the question on account of appellant so earnestly insisting that the evidence complained of was inadmissible. It is appellant’s proposition that where the identity of accused is in dispute it is error to permit in evidence acts and declarations of persons done and said after the commission of the offense in the absence of accused. We think the proposition as stated by appellant is too broad in that it fails to note that the acts and declarations of the injured party or of participants in a transaction would be admissible in evidence if coming within the rule of res gestae. Most of the authorities cited by appellant are cases where evidence of third parties was admitted to the effect that the owner of stolen property identified it in accused’s absence under circumstances where no possible contention that it was res gestae could have been tenable. One of the earlier cases to which we are referred is Anderson v. State, 14 Tex. Grim. App. 49. In the very brief opinion in that case Judge White used this language:
¶4 “What Salkill said to a third party, not being res gestae, nor in the presence or hearing of accused, could and should not be used as evidence against the latter,” thus very clearly indicating if the statement had been res gestae it would have been admissible. In Bowen v. State, 47 Tex. Crim. Rep. 137, a witness testified about what deceased said with reference to the identification of accused as the one who had assaulted him. It was held inadmissible because it was not “shown to have been the dying declaration of deceased Hays, nor is it shown to be a part of the res gestae.” In the recent case of Hendricks v. State, 105 *633 Tex. Crim. Rep. 463, 289 S. W. 38, evidence of a third party as to a statement made by the injured person that he identified accused was held improperly admitted because it was not res gestae. The distinction is quite apparent in rape cases. The state may prove as original evidence that prosecutrix reported the alleged outrage, but is confined to merely proving that she made complaint unless her outcry was res gestae of the attack. If it comes within that rule her statements and conduct are provable even to showing that she named her assailant. (Branch’s Ann. Tex. P. C., Sec. 1784.) The distinction drawn is very clear in Turman v. State, 50 Tex. Crim. Rep. 795 S. W. 533. In that case the state was permitted to prove that after being assaulted prosecutrix fled from the scene and fainted. This was held admissible as being res gestae of the transaction; but evidence that later she again fainted upon identifying her assailant was held inadmissible as not being within the res gestae rule. We have been unable to agree with appellant’s contention that the evidence objected to was not res gestae of the robbery.
¶5 It is our opinion that appellant’s motion for rehearing should be overruled, and it is so ordered.
¶6 Overruled.
¶7 Morrow, P. J., not sitting.