¶1(dissenting).
¶2This writer has had a number of occasions to write on whether a trial court, in light of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), erred in excluding prospective jurors who expressed conscientious scruples against the infliction of the death penalty in capital cases where the State was seeking the death penalty, i. e., Pittman v. State, 434 S.W.2d 352 (Tex.Cr.App.1968); Ex parte Bryan, 434 S.W.2d 123 (Tex.Cr.App.1968); Harris v. State, 457 S.W.2d 903 (Tex.Cr.App.1970); Morales v. State, 458 S.W.2d 56 (Tex.Cr.App.1970); Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.1971). Further, this writer has participated in every other decision of this court since the decision in Witherspoon. Some of the cases have been affirmed and some reversed. There should be little doubt as to the personal opinion of this writer.
¶3Only recently, however, the United States Supreme Court reversed, as to the death penalty, a large number of cases from many states, see Footnote No. 4 of the majority opinion, including five from Texas which had been previously affirmed by this court. Whan v. State, 438 S.W.2d 918 (Tex.Cr.App.1969), rev’d, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971); Turner v. State, 462 S.W.2d 9 (Tex.Cr.App.1970), rev’d, 403 U.S. 947, 91 S.Ct. 2289, 29 L.Ed.2d 858 (1971); Quintana v. State, 441 S.W.2d 191 (Tex.Cr.App.1969), rev’d, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); Harris v. State, 457 S.W.2d 903 (Tex.Cr.App.1970), rev’d, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971); Crain v. State, 394 S.W.2d 165 (Tex.Cr.App.1965), cert. den., 382 U.S. 853, 86 S.Ct. 101, 15 L.Ed.2d 91 (1965), petition for cert. from per curiam denial of habeas corpus granted and judgment rev’d sub nom., Crain v. Beto, 403 U.S. 947, 91 S.Ct. 2286, 29 L.Ed.2d 857 (1971).
¶4In each of these Texas cases, the death penalty was set aside and the cases were remanded to this court “. . . for further proceedings. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969) and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970).” Crain was decided prior to the Witherspoon decision, but the other four cases were decided in light of Witherspoon and Turnertook note of Boulden v. Holman then recently decided. In Harris, all three of the cases cited by the Supreme Court were considered.
¶5In these memorandum opinions this court was furnished no guidelines. We are only left to speculate just how we misinterpreted or misapplied these decisions if in fact we did. Many questions are left unanswered in this area and others are raised.
¶6*386Nevertheless, in view of these reversals and the fact that many of the out of state cases which this court has previously cited and relied upon have also been reversed, I feel we are compelled to take another look, in disposing of the instant case, at Boulden v. Holman and Maxwell v. Bishop, even though in those cases the question of a Witherspoon violation was not finally decided.
¶7It is noted that in Maxwell v. Bishop, 398 U.S. 262, 265-266, 90 S.Ct. 1578, 1580, 26 L.Ed.2d 221, 224 (1970), the court wrote:
“As was made clear in Witherspoon, ‘a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.’ 391 U.S., at 522, 88 S.Ct. at 1777. We reaffirmed that doctrine in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433. As we there observed, it cannot be supposed that once such people take their oaths as jurors they will be unable ‘to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.’ 394 U.S., at 484, 89 S.Ct. at 1142, 22 L.Ed.2d at 439. ‘Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.’ Witherspoon v. Illinois, supra, 391 U.S. at 516 n. 9, 88 S.Ct. at 1774 n. 9, 20 L.Ed.2d at 782.
‘The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has [398 U.S. 266, 90 S.Ct. 1581] begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out . ’ Id., at 522 n. 21, 88 S.Ct. at 1777, n. 21, 20 L.Ed.2d at 785.”
¶8When the foregoing is considered with the examples of voir dire interrogation in both Boulden v. Holman and Maxwell v. Bishop which was held not to meet the Witherspoon test and the same is compared with the voir dire interrogation in the instant case, it is clear to me that the Wither-spoon mandate as now interpreted by the United States Supreme Court has not been met. For this reason I would reverse this cause.
¶9Further, I must, in passing, express grave doubts as to the proper disposition of ground of error No. 5 concerning the admission of hearsay testimony. As I understand it, the court is holding that the statement of appellant’s companion, made after they both were arrested and searched at a different place and time than the offense alleged, was admissible as part of the res gestae even though in response to a custodial question or interrogation. Presumably appellant, though under arrest, was present and within earshot at the time the statement in response to the question was made.
¶10If this was res gestae, it was res gestae of the arrest only and not even Article 38.22, § 1(b), Vernon’s Ann.C.C.P., relating to statements of the accused would appear to authorize such admission.
¶11For the reasons stated, I dissent.
¶12Rehearing denied.