Long v. State , 97 Tex. Crim. 516 ( 1924 )

Appellant is under conviction for the possession of intoxicating liquor for the purpose of sale with punishment of three years confinement in the penitentiary.

A.E. Blitch testified that between twelve and one o'clock on the day of the arrest of appellant and his brother H.O. Long he had a conversation with the latter in Big Springs in which H.O. Long said he had ten gallons of whisky out north of the Experiment Farm near town which he wanted to sell; that his (H.O. Long's) brother was out there with the whisky. Objection was interposed to this testimony on the ground that appellant (R.W. Long) was not present at the time of such conversation, and because no connection of appellant with H.O. Long in the matter had been shown. The bill is explained by the learned trial judge with the statement that the district attorney assured the court that in due time the development of the case would show a conspiracy between appellant and H.O. Long in possessing the whisky for the purpose of sale, and the court admitted such evidence as a declaration made by one conspirator while such conspiracy was pending and in furtherance of the same.

The testimony later developed that Blitch told H.O. Long that he (witness) would come out to where the whisky was located. Blitch immediately informed the sheriff relative to the matter and the sheriff and one of his deputies proceeded to the place where they found ten gallons of whisky secreted in the brush. They discovered R.W. Long (appellant) leaving the place, he being about forty yards from where the whisky was found at the time he was seen by the officers. Appellant was then placed under arrest and the officers secreted themselves. In a short time H.O. Long and his nephew, a son of appellant, drove up in a car and turned out of the road at a point near where the whisky was concealed: H.O. Long was heard to express some impatience at the failure of "that fellow" to come, in a few minutes thereafter the witness Blitch drove up in a car, whereupon the officers also placed H.O. Long and the son of appellant under arrest. The court committed no error in permitting the witness Blitch to detail the conversation had with H.O. Long in the city of Big Spring. The evidence later developed was sufficient to show that he and appellant were acting together in the attempted sale of the whisky and authorized the jury to conclude that appellant was left in charge thereof while H.O. Long sought a purchaser. It appears to be brought clearly within the rule relative to statements by a conspirator made pending the conspiracy and in furtherance thereof regardless of whether the other conspirators are present at the time he makes the statement. Shaw v. State,89 Tex. Crim. 205, 229 S.W. 509; Sec. 694, p. 353, Branch's Ann. Penal Code.

The only other bill of exception relates to an objection on the part of appellant to the witness Blitch testifying that after his conversation with H.O. Long heretofore detailed that he reported this conversation to the officers, the objection being that it was a statement made by the witness Blitch out of the presence of appellant and was as to him hearsay and in no manner binding on him. Blitch did not state in detail before the jury what he reported to the officers, but merely testified that he did report the conversation. The question might properly be disposed of on the ground that the sheriff, without objection, later testified that he received information from Blitch and acted on it. However, appellant briefs the point on the ground that it was in effect permitting the witness Blitch to support himself by his hearsay statement when no attack had been made upon him which would justify it. This was not the objection made at the time as appears from the bill, and from the entire record it does not seem that such was the purpose of the State in making the proof. The authorities to which we are referred, (Brent v. State,95 Tex. Crim. 14, 252 S.W. 500; Holmes v. State,52 Tex. Crim. 352-353, 106 S.W. 1160; Long v. State,58 Tex. Crim. 28, 124 S.W. 640; Dorman v. State, 64 Tex. Crim. 104,141 S.W. 526) do not appear to be in point as we understand the record. The witness testified as a fact that he had a certain conversation with H.O. Long, and to the additional fact that he reported the matter to the officers. Upon that information the officers acted, and they testify to facts learned by them not from Blitch but as a result of acting on information from him. We think the principle announced in Huey v. State, 81 Tex.Crim. Rep.; Marta v. State, 81 Tex.Crim. Rep., 193 S.W. 323 and Willman v. State, 92 Tex.Crim. Rep., 242 S.W. 746 controls. It appears to have been only a method of connecting up the testimony and accounting for the presence of the officers where the whisky was discovered and the arrests made.

Finding no error in the record the judgment is affirmed.

Affirmed.

ON REHEARING. June 4, 1924.