¶1The conviction is for rape; the punishment, death.
¶2This is a companion case to that of Pierce v. State, No. 28,154, this day decided. (Page 372, this volume.)
¶3A summary of the facts as to the ravishing of the 17-year old prosecutrix and the robbery of her companion by Pierce and appellant is set out in our opinion in the Pierce case and need not here be repeated.
¶4Appellant made and signed a written statement which was introduced in evidence without objection. The statement reveals that the appellant owned the pistol used in the attack; that Timothy Pierce had sexual intercourse with the prosecutrix before he did; and that Pierce took the watch and the contents of the purse from prosecutrix’ companion, although he admits that he was wearing the watch when arrested.
¶5Appellant while testifying in his own behalf stated that he was with Timothy Pierce and T. J. Hall on the evening and night in question; that he owned the gun exhibited at the trial and carried it with him when he left home; that he smoked two marihuana cigarettes before he left home and drank beer off and on until midnight. He further testified that he did not remember anything about the attack on the prosecutrix or her companion and could not recall any facts surrounding the attack. He also stated that he voluntarily signed the written statement introduced in evidence, but that he got the facts related therein from the officers as they had previously talked to the girl and her companion.
¶6The court withdrew appellant’s plea of guilty and entered a plea of not guilty for him.
¶7*281We find the evidence sufficient to support the verdict of the jury.
¶8Appellant complains of the admission in evidence of the watch taken from the prosecutrix’ companion over his objection that it was proof of a collateral crime which was inflammatory and prejudicial to the rights of the accused.
¶9When an extraneous crime or other transaction is a part of the res gestae, proof of the same is admissible. The testimony sliows that the watch was taken at the time of the commission of the offense here charged, hence a part of the res gestae. No error is shown. Branch’s Ann. P.C., Sec. 166; Jarman v. State, 112 Tex. Cr. R. 239, 16 S.W. 2d 130; Crumrine v. State, 153 Tex. Cr. R. 611, 224 S.W. 2d 243; 11 Tex. Dig., Criminal Law, Key No. 365(1).
¶10Appellant contends that the court erred in permitting the state to ask the appellant, while he was testifying, if he was “smoking marihuana out there that night” over his objection, “Your Honor, now we object to that question.”
¶11Appellant’s testimony shows that he smoked some marihuana at his home about 3 or 4 hours prior to the time of the alleged rape. He further testified that he was unable to recall any of the facts or circumstances immediately surrounding the offense charged.
¶12In McArthur v. State, 132 Tex. Cr. R. 447, 105 S.W. 2d 227, we said:
¶13“* … It is a well-recognized rule in this State that where motive, intent or the condition of the mind of the accused prior to the commission of an offense is an issue, the acts, words, and conduct of the defendant are admissible, though they show the commission of an extraneous offense. See Holmes v. State, 20 Tex. App. 509, 511; Branch’s Ann. P.C., Sec. 2347.”
¶14No error is here reflected.
¶15Appellant complains of the court permitting the witness James Murray to testify, over his objection, that the witness had been in the courtroom during the taking of all the testimony given on the trial.
¶16The objection is presented by an informal bill of exception *282reserved in the statement of facts. We have only the objection itself as no facts are shown to form a basis for the objection.
¶17In the absence of a showing that said witness was in the courtroom and heard the testimony during the trial we are unable to consider said complaint. 4 Tex. Jur. 294, Sec. 206.
¶18Appellant’s testimony before the jury that he could not recall any of his acts or the acts of his companions, the facts, events or circumstances immediately surrounding the offense charged made it the duty of the trial court to withdraw his plea of guilty and enter for him a plea of not guilty. The procedure followed under these facts shows no error. Rayson v. State, 160 Tex. Cr. Rep. 103, 267 S.W. 2d 153.
¶19Finding no reversible error the judgment of the trial court is affirmed.
¶20Opinion approved by the Court.