
    COX v. STATE.
    (No. 11514.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    1. Criminal law <⅞=>424(5) — Statement, shortly after arrest of one of alleged coprincipals, that officer ought to let accused “run,” held properly admitted as res gestae.
    In prosecution for unlawful possession of equipment for the unlawful manufacture of intoxicating liquor, testimony that, within one or two minutes after arrest of parties at still in operation, one of them stated to officer that he ought to let defendant “run” because he had a big family held properly admitted as res geste.
    2. Criminal law <SP=838(I) — Newly discovered evidence that witness would testify another than accused had sole ownership and exclusive possession of still held¡ cumulative and conclusion of witness.
    Motion for new trial, on the ground of newly discovered evidence that certain witness would testify that to his knowledge another than accused had exclusive control and possession of still, and was owner thereof, and that he had stated that he was sole owner, and that defendant did not know of such testimony, held properly denied as cumulative as stating conclusion of witness respecting ownership, possession, and control of still, and for failing to allege that accused’s counsel had no knowledge thereof.
    3. Criminal law <§=o4I9, 426(10) — Declaration of another than accused that he alone committed offense of possessing equipment for manufacturing liquor held hearsay.
    In prosecution for unlawful possession of equipment for manufacturing intoxicating liquor, declarations of another than accused that he alone committed the offense held hearsay.
    
      Appeal from District Court, Archer County ; E. G. Thornton, Judge.
    Bart Cox was convicted of unlawful possession of equipment for unlawful manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    O. M. Wylie, of Archer City, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful possession of equipment for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

Summarized, the state’s evidence is as follows: Kincaid, an officer, found a still in operation and making whisky. At the still he arrested Mike Bodkins, Luther Cox, and the appellant. Before making the raid or disclosing his presence, he observed the appellant’s automobile some 500 or 600 yards from the still, and saw the appellant and others at the still. He saw the appellant get a piece of cloth, and heard him state that he was going to use it in straining the whisky. He also worked at the worm of the still. A half gallon of whisky was seized and introduced upon the trial.

For the defendant, the testimony from the witness York is that, some time before the arrest, he had observed the still; that Bodkins alone was present, and claimed to be the owner and operator of the still. By the testimony of the appellant, the following was in evidence: Appellant had been told by Bodkins that he had some “stuff” which he would give to appellant if he wanted it. For the purpose of obtaining some whisky, appellant went to the still to which Bodkins had directed him, but found it with difficulty after hunting for it for some two hours. In a few moments after he arrived at the still, Kincaid appeared. At the time of Kincaid’s appearence, appellant was 12 or 15 feet from the still, had not been near it, and had done nothing in the way of its-operation, and had no interest in it whatsoever. The state, in rebuttal, introduced some impeaching testimony, including the admission of the appellant on cross-examination that he had been convicted in Oklahoma for violating the law prohibiting the liquor traffic.

There are two bills of exceptions. From the first bill, it appears that in one or two minutes after the arrest of the parties Bodkins said to Kincaid:

“Curley, you ought to let Bart run. Me and Luther will take this, -on ourselves because he’s got a big family; let him run.”

At the time this remark was made, the parties were all present at the still, which was in operation. The statement was admitted as res gestee of the transaction upon which the conviction rests. The three were in possession of the still, and whisky was running from it. The statement was practically coincident with the arrest, and was made by one of the coprincipals in the presence of the other two. See Copeland v. State, 94 Tex. Cr. R. 112, 249 S. W. 495; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; Bell v. State, 94 Tex. Cr. R. 266, 250 S. W. 177; Belson v. State, 97 Tex. Cr. R. 46, 260 S. W. 197; Gaunce v. State, 97 Tex. Cr. R. 368, 261 S. W. 577; Qualls v. State, 97 Tex. Cr. R. 407, 261 S. W. 1033; Odneal v. State, 100 Tex. Cr. R. 282, 272 S. W. 784; Majors v. State, 100 Tex. Cr. R. 306, 273 S. W. 267; Foster v. State, 101 Tex. Cr. R. 630, 276 S. W. 928; Reese v. State, 102 Tex. Cr. R. 515, 278 S. W. 451; Jones v. State, 106 Tex. Cr. R. 636, 294 S. W. 562; Weir v. State, 107 Tex. Cr. R. 199, 296 S. W. 523.

Appellant sought a new trial upon the ground of newly discovered evidence as set forth in the affidavit of W. H. Hall; whose statement was in substance that to his knowledge Mike Bodkins had exclusive control and possession, and was the owner of the equipment for the manufacture of intoxicating liquor, which was moved by Bodkins to a location near “Dad’s Corner, Tex.” ; that the witness examined it, and was told by Bodkins that it belonged to him, and that he intended to make whisky with it by himself; that his experience with partners was unsatisfactory. Disposition of the complaint might be made upon the ground that in the motion for new trial it is recited that the court heard evidence, which is not preserved and made a part of the record. See Cade v. State, 96 Tex. Cr. R. 523, 258 S. W. 484; Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99. However, the merits of the complaint are not such as to warrant a new trial. It is averred in the motion that the appellant did not know Hall’s testimony, but there is no such averment with reference to its knowledge by his counsel. The evidence is in substance but cumulative of that of the witness York given upon the trial, and for that reason is not available as a ground for a new trial. See Vernon’s Ann. C. C. P. 1925, vol. 3, p. 29, note 32. It consists of a conclusion of the witness touching the ownership, possession, and control of the equipment. The declaration of Bodkins in effect that he alone committed the offense was hearsay. See Bowen v. State, 3 Tex. App. 617; Walsh v. State, 85 Tex. Cr. R. 215, 211 S. W. 241; Nichols v. State, 97 Tex. Cr. R. 174, see page 180, 260 S. W. 1050. Other cases are collated in Shepard’s Tex. Citations, Feb. 1928, p. 47, under Tex. Cr. Rep. Cum. Sup. vol. 3, p. 617.

The judgment is affirmed. 
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