¶1ON STATE’S MOTION FOR REHEARING.
¶2The District Attorney of McLennan County has filed a motion for rehearing. The contention made, which demands our consideration, challenges our holding that the appellant was under arrest at the time he made the oral statement which was held to be inadmissible against him. This matter was thoroughly considered on original hearing. It will not be necessary to re-discuss it. We wish, however, to emphasize the fact relied upon in the original opinion.
¶3It is true, as insisted, that at about 4 o’clock, some three hours or more after appellant had reported at the jail, appellant said: “If you all are through with me I guess we had better go, it’s getting late.” This is construed by the state as expressing the view of Trollinger that he was not under arrest. At this time he stood before the officers in exactly the same position that he did when he asked the jailer to open the door and let him in. It is quite evident that the deputy sheriff considered him under arrest. In reply to Trollinger’s statement, the deputy sheriff asked the district attorney what to do about it. It is also evident that the district attorney considered him under arrest for he replied that appellant would have to give bond.
¶4Under this situation the state is not in position to contend that he was not under arrest. We adhere to the original holding and the state’s motion for rehearing is overruled.