Cooke v. State , 114 Tex. Crim. 35 ( 1929 )

The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for two years.

The state's witness, Claude Harper, was employed by one McCrary as a truck-driver, McCrary being engaged in the transfer business. Harper testified that he was instructed to go to Fairfield with his truck for the purpose of bringing a load back to Waco; that upon reaching Fairfield, pursuant to his instructions, he went to a drugstore where he met a man who told him to follow a Chrysler roadster; that a Mr. Pickett was one of the men in the roadster, but that there were two men riding with him whom he did not know; that they went to a house where his truck was loaded with fifty cases of jars packed in cartons; that he did not know who loaded the truck, but that the men who had directed him to the house said that the jars contained fruit; that he then came from Fairfield to Waco with his load, being accompanied by a Chrysler roadster like the one he had followed to the whiskey; he said that it was "either the same one or one just like it," and that the same occupants of the car at Fairfield were in the car that accompanied him to Waco; that Pickett rode with him on the truck to the limits of the city of Waco; that between Fairfield and Teague the Chrysler roadster stopped and appellant asked him (the witness) why he did not go faster; that he replied that he was trying to get in with the stuff but that the truck was not running right; that appellant said "get there as fast as you can"; that from that time he did not see appellant again; that as he was going to Waco some officers passed him about four times, slowing up like they were going to stop him; that they drove along by his side for a short distance and then drove on in front of him; that Pickett, who was riding on the truck with him, carrying a pistol in his hand, directed him to turn around, which he did; that he drove back three or four hundred yards and came on in to Waco on what is known as the Marlin road; that he carried his load to a house in Waco between Twenty-fifth and Twenty-sixth Streets on Bosque Boulevard; that he and Pickett unloaded the cartons containing the jars; that when he turned back at the command of Pickett the Chrysler car drove on into Waco; that he didn't know he was transporting whiskey. On the occasion in question, officers left Waco between eleven and twelve o'clock at night and drove out on the Springfield road. About 3 a. m. the truck driven by the witness Harper appeared. In the meantime the officers had been driving up and down the road waiting for the truck to come along. Upon seeing the truck coming toward Waco, the officers passed it, drove on about half a mile and then turned back. They then proceeded to follow the truck and a Chrysler roadster, which was between them and the truck. The roadster was about three hundred yards behind the truck. They drove around the roadster and took position between it and the truck. Presently the truck slowed down like it was going to stop and the officers drove on ahead. In a short while the Chrysler roadster passed the officers and stopped at a place on the Springfield road. The officers did not know who was in the Chrysler. They continued to follow the truck but presently passed the truck on a hill. The Chrysler roadster then took a position between the car driven by the officers and the truck. The officers thought the truck was still following them and stopped at a point in the road in order to let the truck pass ahead of them. However, the truck did not appear but the Chrysler did. The officers turned around and drove back to a point where it appeared that the truck had turned around and endeavored to track it from this point in to town, but lost track of it. The officers then drove to a cafe in the city of Waco where they got out for the purpose of getting some coffee. While they were drinking the coffee, appellant and a companion walked in the cafe. Leaving the cafe, the officers saw the Chrysler that they had seen out on the Springfield road parked nearby. After conferring with Harper, the officers secured a search warrant and searched the house on Bosque Boulevard pointed out by Harper as the place where the load had been delivered. Mrs. Pickett was present at the time the search was made. Seventy-two gallons of corn whiskey were discovered. About 6:30 a. m. the whiskey was taken to the court house, unloaded and placed in the vault. While the whiskey was being carried to the vault by means of a hand truck, the district attorney stepped out of the sheriff's office into the hall. Appellant was sitting just across from the sheriff's office. The district attorney sat down by him. Tears came into appellant's eyes and he said; "Mr. Holt, (referring to the district attorney) that is my money that is tied up in that whiskey. I feel sorry for that poor old s__of-a-b____ and have felt sorry for him from the day he came back from the war, and I was trying to give him a start." The district attorney testified that appellant then began to tell him about the sheriff being out on the road. He said that appellant stated to him that he saw the sheriff and knew who it was when he first passed them; that it was a good thing that the officers hadn't stopped them; that if they had tried to stop them they were ready for them. The district attorney went into the sheriff's office and told him what had transpired between him and appellant. Appellant was requested to come into the sheriff's office, which he did. The sheriff asked appellant what he had been talking about, saying to appellant; "I never would have suspected you if I had not seen you in the cafe and if we had not come out and seen that Chrysler car." Appellant replied: "Mr. Stegall, (referring to the sheriff) you are not going to have any trouble with me. I never gave an officer any trouble in my life." At this point appellant made another statement which the district attorney testified to as follows:

"And then he proceeded to tell as to why he was out there. That Roy Pickett was up against it, and that he had just gone with Roy to get this stuff to keep the hijackers off of him, and he said that he had advanced the money with which to pay for the liquor. We talked some little time then, and I do not know just who left first, but we left, and Tommie said that he could get hold of Roy Pickett and would bring him down there, and in about thirty minutes or an hour Roy Pickett came into the office and I talked to Roy Pickett a little."

Appellant offered no testimony.

The court charged on the law of principals. After giving the usual definition of principals, the jury were charged that all persons who shall engage in procuring aid or means of any kind to assist in the commission of the offense while others are executing the unlawful act are principals. This charge was timely and properly excepted to, with the request that the court instruct the jury that if appellant furnished the money with which to buy the whiskey such act would not of itself make him a principal unless he was personally present at the time the whiskey was transported. Further the court was requested to define accomplice and instruct the jury that if they had a reasonable doubt as to whether appellant was an accomplice he could not be convicted as a principal. We understand the rule to be that if appellant furnishes the means by which the offense is committed, but is absent at the time of its commission, and is not then doing something in furtherance of the common design, so as to make him constructively present, he cannot be convicted as a principal. Hext v. State,282 S.W. 242, and authorities cited. At some point on the trip to Waco, whether in McLennan County or another county, appellant was present in the Chrysler roadster and had urged the transporter of the whiskey to hurry on to Waco. The Chrysler car in which appellant was driving at the time he had the conversation referred to proceeded in to Waco. It is true that the witness Harper testified that appellant could have gotten out of the car and walked into Waco, but there is no testimony that appellant in fact did this. A short while after the officers left the point in the road where the truck had turned back they drove to a restaurant in Waco where they had remained but five minutes when appellant and a companion entered. Leaving the restaurant they saw the same Chrysler roadster parked outside nearby. On the same morning that the whiskey was being placed in the vault in the court house appellant said that he had bought the whiskey, and, in substance, that he had aided in transporting it to Waco for the purpose of keeping hijackers from getting it. He admitted that he had seen the officers on the road when they were following the truck. When, in effect, accused by the sheriff of being on the road, he offered no denial. These facts were not contradicted. We think they conclusively show that appellant was present when the whiskey was being transported. The giving of the charge here complained of was proper under the facts.

The fact that Harper may not have known that he was transporting whiskey would not excuse appellant. One may be a principal who employs a person who can not be punished to commit an offense. Art. 68, P. C. Duncan v. State,215 S.W. 853. Hence it was not error for the court to refuse to instruct the jury to acquit appellant if they had a reasonable doubt as to whether the witness Harper was an innocent agent.

Nor do we think the court erred in declining to instruct the jury that if they had a reasonable doubt as to whether the whiskey was transported in McLennan County that appellant should be acquitted. We find no evidence in the record to the effect that appellant's connection with the transportation of the whiskey ceased before it entered McLennan County. On the other hand we think the evidence is conclusive to the effect that appellant accompanied the truck in McLennan County.

There being no evidence raising the issue, the court properly refused to charge on alibi.

Complaint is made of the failure of the court to charge on the law of circumstantial evidence. We think the evidence of the transportation of the whiskey is direct. If we are in error in this, we are of the opinion that the facts proven are in such close juxtaposition to the main fact as to be equivalent to direct testimony. Branch's Annotated Penal Code, Section 1874. The officers went to the house pointed out by Harper as the place where the whiskey was unloaded. They found a large quantity of whiskey. Appellant admitted that he had bought the whiskey, and made a statement to the effect that he had gone with Pickett for the whiskey. He admitted that he saw the officers on the road the night they were following Harper's truck. According to Harper's testimony, appellant had gotten out of the Chrysler roadster while they were traveling toward Waco and urged Harper to hurry.

Attached to the motion for a new trial is the affidavit of a witness claimed to be newly discovered. It was averred in the affidavit, in substance, that the witness knew appellant; that witness was at the drugstore on the night Harper drove there in a truck; that the witness saw the occupants of the Chrysler car Harper followed; that appellant was not in the car. The motion for new trial contains averments relative to the newly discovered evidence. Assuming that the diligence was sufficient, we are of the opinion that, considered in connection with the testimony heard upon the trial, that the learned trial judge was warranted in concluding that the new testimony was not such as would likely change the result if produced upon another trial. Appellant offered no defense. The evidence showing guilt was uncontradicted, and, in our opinion, plainly connects appellant as a principal with the offense. The action in overruling a motion for a new trial, based on newly discovered evidence will not be revised unless it is apparent that the discretion vested in the trial judge has been abused to the prejudice of the accused. Coleman v. State, 300 S.W. 59.

Failing to find reversible error, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.