
    SHEFFIELD v. STATE.
    (No. 8032.)
    (Court of Criminal Appeals of Texas.
    March 12, 1924.
    Rehearing Denied Jan. 28, 1925.)
    1. Criminal law <&wkey;368(I)— Conversation between driver of truck, hired by accused to transport liquor, and prosecuting attorney, admissible.
    Conversation of driver of truck, hired by accused to transport liquor, with prosecuting attorney at time of transportation charged, held admissible as part of res gesta, having taken place in presence and hearing of accused.
    2. Intoxicating liquors <&wkey;*l38 — Charge of transporting intoxicating liquors sustained.
    Where accused, in personal possession of checks for trunks containing intoxicating liquor, delivered them to truck driver, who was in ignorance of contents, directing him where to take them, and was immediately preceding truck in his car when apprehended, charge of transporting intoxicating liquors held sufficiently supported.
    
      3. Criminal law <&wkey;814(17) — Refusal to charge on circumstantial evidence not error.
    In prosecution for transporting intoxicating liquors, refusal to charge on circumstantial evidence held not error, where accused was present, accompanying and directing carriage of liquor by truck driver, who had same by ■direct order and command of accused.
    On Motion for Rehearing.
    4. Indictment and information 73(1) — Charge that accused directly and indirectly trans- ■ ported liquor held not to present contradiction.
    Charge that accused “directly and indirectly transported” liquor did not present contradictory terms, words “directly” and “indirectly” being surplusage.
    5. Indictment and information <&wkey;>83— Indictment for transporting liquor, in fact conveyed by truckman employed by accused, sufficient.
    Indictment for transporting intoxicating liquor, which was in fact conveyed by truck-man employed by accused, though failing to so allege, 'held sufficient, where accused was principal within Pen. Code 1911, art. 77, in employing innocent agent, and within article 78 in being present at commission of offense which he advised; it being unnecessary to set out facts making him principal.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    W. A. Sheffield, alias Clyde Sheffield, was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    McLean, Scott & Sayers, of Fort Worth, for appellant.
    R. K. Hanger, Cr. Dist. Atty., W. H. Tol-bert, and J. B. Mastín, Asst. Cr. Dist. Attys., all of Fort Worth, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORH, J.

Appellant was convicted in the criminal district court of Tarrant county of transporting intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant gave to a transfer man in Fort Worth two checks for trunks, and directed him to follow him with the trunks and deliver them at the place to which appellant should go. He then drove in a southeasterly direction from the city of Fort Worth closely followed by the truck carrying i the two trunks in question. Appellant was stopped by the district attorney of Tarrant county and a search made of his car. Immediately following this search, he was asked by said attorney relative to the contents of the trunks on said truck, and replied that there was whisky in same. Upon a later examination of the contents of the trunks the truth of this statement of appellant was verified. His prosecution and conviction followed.

Four bills of exception appear in the record. Complaint of a conversation had between the district attorney and the driver of the truck is without merit. The bill relating thereto shows that appellant was present and heard the conversation, which we believe to be part of the res gestse of the transportation charged. There is nothing in the complaint made of the definition of the term “transport” as same appears in the charge given by the learned trial judge.

Nor do we think the record to exhibit any failure to support the charge as laid. Appellant was in personal possession and control of the checks for the trunks which contained the liquor in question, delivered the checks to the truck driver (who was in ignorance of the contents of the trunks), directed the truck driver where to take said trunks, and was in his car in the road immediately preceding the truck on which were the trunks, when stopped by the district attorney and the contents of the trunks ascertained. We have no doubt that this makes the transportation of said trunks of liquor, the act of the appellant. Under a number of definitions of principal offender, as laid down in our statute, appellant would be a principal in the crime charged.

Nor do we think error appears in the refusal of the court to charge on circumstantial evidence. Appellant was present accompanying and directing the carriage of the liquor by the truck • driver, who had same by direct order and command of appellant.

Finding no error in the record, an af-firmance is ordered.

On Motion for Rehearing.

Appellant urges that the allegations in the indictment, that he “directly and indirectly transported,” the liquor in question, vitiate the indictment by charging two inconsistent ways of violating the law. He insists that the words “directly” and “indirectly” • present two such contradictory terms as to make an indictment charging both of them obnoxious to the rules when presented ■ in the same count. We held in Berry v. State, 94 Tex. Cr. R. 3, 249 S. W. 223, such an indictment to sufficiently charge the offense. Appellant cites United States v. Thomas, 69 F. 588; State v. Adams, 179 Mo. 334, 78 S. W. 588; State v. Burk, 188 Mo. App. 683, 176 S. W. 487, and Moore v. State, 83 Tex. Cr. R. 302, 203 S. W. 51. We think appellant misapprehends the effect of the decisions cited. As we understand them they present the same principle discussed at length by us in Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515. The cases cited are in accord with Todd’s case on the proposition that where a number of acts are named in a statute as separate offenses they cannot be placed in one count and connected by tbe conjunction “and,” for this makes" tbe count duplicitous. We quote from tbe Burk Case cited:

“So that it cannot be said that the statute undertakes to punish as for but one offense that which might be committed in different modes. If it were, then that one offense could be charged in one count with the various ways specified in which that offense could be committed. State v. Pancher, 71 Mo. 460. Neither does the statute forbid several things in the alternative, so that it can be treated in criminal pleadings' as dealing with but one offense, whereby all of the things forbidden may be charged conjunctively in one count.”

Tbis says in very plain language that if a statute defining one offense contain different ways of committing it, they may be all stated conjunctively in tbe same count. We expressed tbe same view in Todd’s Case, supra, in which we said:

“When the definition of one offense in the statute embraces several ways in which same may be committed, all punishable alike, these several ways may be charged conjunctively in the same count in an indictment.”

That there is a vast difference between stating conjunctively -the different means of committing one offense, and tbe stating of separate offenses conjunctively in tbe same count, is so plain as to not need extended discussion. Tbe holdings of tbis court seem to be uniform upon tbe proposition that one may state different means of committing tbe same offense conjunctively without offending against tbe rules. An allegation that accused did tbe thing violative of law by himself, and as agent of another, is held not repugnant or duplicitous. Stevens v. State, 70 Tex. Cr. R. 567, 159 S. W. 505. That one may allege an assault of any grade by tbe use of wholly variant means conjunctively stated has been upheld too often to need citation of authorities. We might add in tbis connection that many cases might be cited in which we have upheld indictments for violation of the liquor laws which entirely omitted to state whether the transportation was “directly” or “indirectly,” and in our opinion it is not necessary to the validity of the indictment to use said words. Benson v. State, 95 Tex. Cr. R. 311, 254 S. W. 794; Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090; Berry v. State, supra. If we be correct in this, then the use of either or both of said words would be but -surplusage, and might be rejected. The uniform rule is that the use of a word or words, if same be sur-plusage, does not vitiate the indictment.

It is insisted both in the oral and written arguments in support of this motion that inasmuch as it appears that if guilty at all, it was by reason of appellant having employed another to commit the offense; therefore the indictment failing to so allege would not be sufficient to put appellant upon notice of the charge against him. As stated in the original opinion, appellant employed a truck-man to convey trunks containing liquor, and same while in transit on the truck were accompanied by appellant in his own car, and this condition existed at the time of his apprehension. One is a principal offender under article 77 of our Penal Code, who employs an innocent agent to commit an offense, which proposition has recently been discussed at length in Houston v. State, opinion handed down November 15, 1924. Under article 78, P. C., he is a principal who, having advised and agreed to the commission of an offense, is present when same is committed. Kemp v. State, 96 Tex. Cr. R. 152, 256 S. W. 264. Appellant would seem to be a principal under either or both phases of the statute. Numerous authorities are collated in section 676 of Mr. Branch’s Annotated Penal Code, sustaining the proposition that those things which make one a principal need not be set out in detail in the indictment. It may be charged that the offense was committed in ordinary form as though the accused were the only actor, and such an indictment would be good upon proof that the accused was a principal under any of the various phases of the law of principals. We do not think it incumbent ■upon the state to undertake to set out in the instant case those things which would make appellant a principal, and believe the indictment to be sufficient.

Regretting our inability to agree with appellant, the motion for rehearing will be overruled. 
      
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