
    JOHNSON v. STATE.
    (No. 8267.)
    (Court of Criminal Appeals of Texas:
    Oct. 8, 1924.
    Rehearing Denied Nov. 5, 1924.)
    1. Intoxicating liquors <§=>202 — Indictment for transporting equipment for making liquor held sufficient.
    Indictment for. transporting “equipment for making such liquors,” in violation of Acts 37th Leg. 1st Called Sess. (1921) c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, arts. 588%-588%a4), was not defective in failing to allege equipment was transported for purpose of manufacturing liquor.
    2. Crimina! law @=>528 — Declaration of accused’s co-defendant, while accused absent, held admissible, though both were under arrest when declaration made.
    Under Code Cr. Proc. art. 811, that accused and his codefendant were under arrest when codefendant made declaration in accused’s absence, did not prevent its reception in evidence against accused, if otherwise admissible; article 810 not being applicable.
    3. Intoxicating liquors @=>236(19) — Evidence held to warrant conviction of transporting equipment for manufacturing liquor.
    Evidence held) to warrant conviction of transporting still and other equipment for manufacturing liquor, in violation of Acts 37th Leg. 1st Called Sess. (1921) e. 61 (Vernon’s Ann. Pen. Code Supp. 1922, arts. 588%-588%a4).
    4. Intoxicating liquors @=>239(2) — Refusal to instruct that .moving still from one place to another on accused’s farm did not constitute offense held not error.
    Refusal to instruct that moving still from one place to another on accused’s farm would constitute no offense, under. Acts 37th Leg. 1st Called Sess. (1921) c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, arts. 588%-588%a4), held not error, in view of evidence that it was being transported from another place, and in absence of evidence that act was lawful under sections 1 and 2b.
    5. Intoxicating liquors @=>137 — Offense of “transporting” equipment to manufacture liquor complete when transportation begun.
    Offense of transporting equipment for manufacturing intoxicating liquor, in violation of Acts 37th Leg. 1st Called Sess. (1921) c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, arts. 588%-588%a4), is complete when transportation is begun, though 'destination is never reached.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Transport — Transportation.]
    Appeal from District Court, Bowie County ; Hugh Carney, Judge.
    Ed Johnson was convicted of transporting a still and other equipment suitable for manufacturing .intoxicating liquors, and he appeals.
    Affirmed.
    Johnson & Waters, of New Boston, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for the offense of transporting equipment for making intoxicating liquors; punishment fixed at confinement in the penitentiary for one year. The evidence was such as authorized the jury to conclude that the appellant and Aaron Hill were carrying a still and other equipment suitable for manufacturing intoxicating liquors towards the premises of the appellant, upon which there was found secreted mash suitable for making corn whis-ky.

The offense of transporting equipment for making intoxicating liquors is denounced in chapter 61, Acts of the 37th Leg. 1st Called Sess. (Vernon’s Ann. Pen. Code Supp. 1922. arts. 588%-588%a4). We have failed to find any fault in the indictment rendering it subject to the exceptions. It is not necessary to charge that the equipment was transported for tie purpose of manufacture mg liquor. It was sufficient, under tie statute to ciarge tiat it be “equipment for making suei liquors.”

Appellant complains of tie receipt in evidence of tie declaration of Aaron Hill in tie absence of tie appellant and wiile boti Hill and tie appellant were under arrest. Tie bill, as qualified, is somewiat confusing. If we properly comprehend tie record, it appears tiat tie witness Smith, in company witi Sheriff Richardson, wiile on their way to arrest a woman, unexpectedly met Ed Johnson and Aaron Hill; tiat at tie time of the meeting Johnson and Hill had in their possession a still which they were carrying. Tie meeting took place about dark in tie evening at a point about 300 yards from tie house of Johnson and upon his farm. After their arrest, a search warrant was procured and the premises of Johnson were searched. There was found additional equipment, including mash suitable for the manufacture of whisky.' On cross-examination, appellant developed from the witness Smith that at the time of the arrest it was stated that they had been employed by a white man to haul^the still, that the man had agreed to pay Hill $5 for his services, and that Hill had agreed to make an equal division of this compensation with the appellant. Hill seems to have made the statement in the presence of the appellant, and also to have said that the white man was down on the creek about 300 yards distant, at the same time asking the officer to go with them and arrest the white man. On redirect examination the witness Smith testified that “the reason he did not go and look for the white man was that Hill said that there ■was no white mail.” This information was imparted by Hill to Smith about 20 minutes after the arrest not in the hearing of the appellant. The trial judge, in explaining the bill, says that in the cross-examination of the witness Smith an effort was made to lead the jury to believe that he had willfully refrained from making any effort to find the white man who was in the woods and that the testimony complained of was permitted in explanation of the officer’s conduct, which was assailed by the cross-examination.

The point made that the appellant and Hill were under arrest is deemed without merit. If Hill was on trial, the confession statute (article 810, O. €. P.) might be a protection against the use of his declaration against him. Hill’s custody, however, is not available to the appellant to prevent the receipt of the declaration of Hill, which is otherwise admissible. The declaration in question seems to have been properly received by reason of article 811, C. O. P., which declares in substance that, when part of a conversation is given in evidence by one party, the whole on the same subject might be given by the opposite party, as may also any other act or declaration necessary to explain that which is given in evidence. See 2 Vernon’s Tex. Crim. Stat. 1916, p. 759, and cases collated, including Rainey v. State, 20 Tex. App. 455; Harrison v. State, 20 Tex. App. 387, 54 Am. Rep. 529; Smith v. State, 46 Tex. Cr. R. 267, 81 S. W. 936, 108 Am. St. Rep. 991; also Savage v. State, 75 Tex. Cr. R. 213, 170 S. W. 730; Watts v. State, 75 Tex. Cr. R. 330, 171 S. W. 202; Williams v. State, 89 Tex. Cr. R. 334, 231 S. W. 110; Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790.

It is believed that the court committed no error in refusing to instruct the jury that the moving of the still from one place to another upon the farm of the appellant would constitute no offense. It is deemed a misconception in the cases of Warren v. State, 94 Tex. Cr. R. 243, 250 S. W. 429, and Hill v. State, 96 Tex. Cr. R. 165, 256 S. W. 921, to assume that it is therein declared by this court, as a matter of law, that the statute against transporting equipment would not be violated provided the movement took place on the prfemises owned by the accused. In Warren’s Case, supra, the appellant claimed to possess some whisky for medicinal purposes. The court erroneously refused to submit that issue to the jury, and upon that ground there was a- reversal, though the court said that the evidence in the particular case — the removal of the whisky which the accused lawfully possessed from his dwelling house to his henhouse in the same yard —would not justify the conviction. In Hill’s Case, supra, the accused walked from his front door to his front gate and gave a friend a drink of whisky out of a bottle which contained about four ounces. Hill’s possession of the liquor was lawful, and there was no semblance of evidence of an intent to carry the whisky from one place to another within the meaning of the law. Both of the above are fact cases, and, like the present, must be measured by the evidence adduced upon the trial.

At the moment the appellant and his companion were apprehended, they were on Johnson’s farm about 300 yards from his house, traveling in the direction of his dwelling. According to the res gestae declarations, they were conveying the still for hire from . some other point at the instance of a white man. In the statute it is said:

“That it shall be unlawful for any person * * * to * * * transport * * * any equipment for making such [intoxicating] liquors.”

The accused is given the privilege of introducing testimony to show that the act was done for one of the purposes permitted by law. See Acts 37th Beg. 1st Galled Sess. c. 61, §§ 1 and 2b.

In the present record there is found no such testimony, but the contrary purpose is indicated. The circumstances suggest that the intent was to carry the still to the home of the appellant, where there was mash and other arrangements for making whisky. Moreover, we do not understand that the place from which they started with the still was shown to have been on the appellant’s farm. When the transportation, within the meaning of the statute, has begun, the offense is complete, even though the destination has not been reached. Lamb v. State, 95 Tex Cr. R. 457, 255 S. W. 424; Finley v. State, 96 Tex. Cr. R. 542, 258 S. W. 1062; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613; Black v. State, 96 Tex. Cr. R. 56, 255 S. W. 731.

The evidence is deemed sufficient to sustain the conviction.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have examined appellant’s motion for rehearing, and also reexamined Warren’s Case. 94 Tex. Cr. R. 243, 250 S. W. 429, and Hill’s Case, 96 Tex. Cr. R. 165, 256 S. W. 921. They do not support •the proposition of law contended for here, but are to be understood in the light of the facts before us in those cases.

The motion for rehearing is overruled. 
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