
    LAAKE v. STATE.
    (No. 11099.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    Rehearing Denied Feb. 1, 1928.
    1. Criminal law <&wkey;-l 134(3) — 'Where conviction was for transporting liquor, objections and special charges as to issue of possession held not reviewable.
    Where defendant was indicted for possessing intoxicating liquor for sale and for transporting liquor, but conviction was only for transporting liquor, objections and special charges as to issue of possession held not reviewable.
    2. Criminal law <&wkey;394 — On prosecution for transporting liquor, defendant cannot complain that evidence was obtained from illegal search of another’s residence.
    On appeal from conviction for transporting liquor, defendant cannot complain that evidence was obtained by illegal search of another’s residence.
    3. Criminal law &wkey;»665 (4) — Admitting testimony of officers permitted to remain in courtroom while other witnesses were testifying, notwithstanding rule had been demanded, held discretionary.
    In prosecution for transporting intoxicating liquor, admitting testimony of officers who were permitted to remain in the courtroom while other witnesses were testifying, although the rule had been demanded, held within, trial court’s discretion, where these witnesses were peace officers, whose assistance was necessary to enable the court to conduct its business.
    4. Criminal law <&wkey;365(l) — Admitting testimony, on prosecution for transporting liquor, that complaint was filed against defendant for fighting at time of arrest held no error.
    Admitting testimony, on prosecution for transporting intoxicating liquor, that complaint was filed against defendant for fighting at the time of his arrest, held no error, where it was not shown that- such fighting was not res gestie, and some testimony tended to show that it was.
    5. Intoxicating liquors <&wkey;233(l) — On prosecution for transporting liquor, testimony of appellant’s use of intoxicating liquor, and that he was drunk when arrested1, held material.
    On trial for transporting intoxicating liquor, testimony of appellant’s use of liquor shortly after the alleged transportation, and that he was drunk when arrested, held material and admissible.
    6. Criminal law &wkey;>ll74(l) — Permitting jury to smell of whisky, if error, held harmless, where there was no controversy as to character of liquor.
    On prosecution for transporting intoxicating liquor, permitting jury to smell of liquor introduced in evidence, if error, held harmless, where there was no controversy over the fact that the liquor introduced was whisky, and consequently intoxicating.
    7. Criminal law <&wkey;359 — On prosecution for transporting liquor, rejecting defendant’s evidence that person where he was arrested and liquor was found was indicted for manufacturing liquor on different date, held no error.
    On prosecution for transporting intoxicating liquor, refusing to permit defendant to prove that person, at whose house he had been arrested, and where liquor introduced in evidence had been found, had been subsequently indicted for manufacturing liquor at a date other than that involved in transaction for which defendant was being tried, held no error; such person not being a witness for state.
    8. Intoxicating liquors <&wkey;239(3) — Instruction to convict, if defendant acted with any other person in transporting liquor, held no-error, notwithstanding brother was only possible accomplice.
    Instruction, on prosecution for transporting intoxicating liquor, to convict defendant if he acted with any other person in transporting liquor, although brother was, under the evidence, the only possible accomplice, held not open to objection that it gave jury too great latitude in permitting them to decide that defendant acted with some one other than brother.
    9. Intoxicating liquors &wkey;>239(3) — Where evidence in prosecution for transporting liquor justified application of theory of principals, charge requiring guilt to depend on defendant’s own acts held properly refused.
    Where evidence, in prosecution for transporting intoxicating liquor, justified application of theory of principals, requested charges making defendant’s guilt depend solely on his own acts held properly refused.
    10. Criminal law &wkey;>l 173(1)— On prosecution for transporting liquor, failure to define transportation, if error, held harmless, where fact of transportation was not contested.
    On prosecution for transporting intoxicating liquor, failure to define transportation, if error, held harmless, where there was no contest over the fact of transportation.
    Appeal from District Court, Williamson County; Cooper Sansom, Judge.
    Alex Laake was convicted for transporting intoxicating liquor, and he appeals.
    Affirmed.
    Amos Peters, of Taylor, and Wilcox & Graves, of Georgetown, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

That appellant and his brother drove a car from a public street into an alley in the city of Taylor, Williamson county, Tex., at or about the time mentioned in the indictment, and that they took from same certain liquor, which théy carried from the car to a point near a telephone post, not far from the home of one Bud Johnson, seems without dispute. Appellant did not take the stand, nor did he offer any testimony contradicting that of the state in support of the facts stated.

There were two counts in the indictment, one charging the possession of intoxicating liquor for the purpose of sale, and the other the transportation of such liquor. Testimony tending to support both counts was before the jury, and both counts were submitted to the jury, with an instruction that they could convict only under that count which was supported by the testimony. The conviction was under the second count. Several objections and special charges, etc., pertaining to the issue of possession, pass out by reason of the conviction for transporting the liquor.

There are a large number of bills of exception, all of which have been examined. We do not think the remark complained of in bill of exceptions No. 1 presents any error, and especially in view of the 'qualification to said bill.

The bill complaining of the youth and indiscretion of the witness Haggard is so qualified as that same presents no error. The record contains much other testimony given by this witness showing him fully qualified under the law to give testimony.

Complaint is made in several bills of the use of testimony given by the officer who went into the house of Mr. Bud Johnson, where appellant and his brother were, and who found therein liquor, a sack, etc., corresponding with that which appellant and his brother took from their car in the alley and placed near a telephone post. The objection to this testimony is that the officer had no search warrant to enter the home of Bud Johnson. Appellant devotes much time and energy to an effort to convince this court that we erred in our disposition of a similar complaint in the ease of Craft v. State (Tex. Cr. App.) 295 S. W. 617. We have upheld the doctrine announced in the Craft Case in subsequent opinions, and are not led to believe that what we there said was not sound. We cannot agree with appellant’s objection to the testimony of witness McConnell as to what he found in the house of Bud Johnson. We see no reason to further review the authorities or discuss the proposition upheld by us in the Craft Case.

There is complaint of the admission of the testimony of certain officers who were permitted by the trial court to remain in the courtroom while other witnesses were testifying ; the rule having been demanded. These matters are largely within the discretion of the trial court. Each bill of exceptions presenting this complaint is qualified by the statement that these witnesses were peace officers, and their assistance was necessary to enable the court to conduct its business. We find nothing wrong in the court’s action.

There is a bill complaining that a witness was permitted to testify that a complaint was filed against appellant for fighting at the time of the arrest in this cause. There is nothing in the bill to show that such fighting, if any, was not res geste of the transaction involved in this prosecution. In fact, there is testimony supporting the conclusion that, at the time the officer went to the house of Bud Johnson, and found appellant and his brother there, a fight was in progress. We perceive no violation of any of the rules in the admission of this testimony.

Testimony showing the use by appellant of intoxicating liquor at the time he was arrested shortly after the alleged transportation, and that he was drunk at the time, is material, and complaint at its reception cannot be sustained.

The liquor was introduced in evidence, and the jury was permitted to smell of same. Such smelling might in some cases be erroneous, but in a case like this it would not be held reversible; ■ there being no controversy over the fact that the liquor introduced in evidence was whisky, and consequently intoxicating. Reid v. State, 100 Tex. Cr. R. 512, 271 S. W. 625.

We are at a loss to see how appellant could be injured by the refusal of the trial court to permit him to prove that Bud Johnson, at whose- house appellant was arrested, had been indicted subsequently for manufacturing liquor upon a day and date other than that involved in this transaction. Johnson was not a witness for the state. We think the objection to this testimony properly sustained.

The court properly charged the jury on the law of principals; appellant and his brother sustaining that relation to each other in the matter of transporting the liquor in question. We are not in agreement with appellant’s complaint at the form of the submission of this issue. That the court told the jury that, if they believed beyond a reasonable doubt that appellant, either alone or acting with any other person, transported liquor, etc., he should be convicted, is not open to the objection that it gave the jury too great latitude in regard to an acting together with some person other than appellant’s brother.

There are several special charges, the refusal of which is complained of, attempting to state the law relating to transportation, possession, etc., of the liquor in question. Said charges are objectionable, because they ignore entirely the proposition of principals, and seek to have the jury told that the appellant could not be convicted, unless he was in possession, or unless he transported, etc. The testimony before the jury tended to support the proposition that the brother of appellant was driving the car in which the two were, but that, when they reached their destination in the alley above referred to, appellant’s brother tool? a sack out of the car, and appellant took a jar of whisky out of the car, which articles were carried by each to the place where they were left by the telephone post, as above stated. A special charge which failed to embrace the theory of principals under these facts, and makes appellant’s guilt depend solely upon, his own acts, would not seem ‘to properly present the issue. We find no substantial ground for complaint at the failure of the court to define transportation. Unless there should appear some contest over the fact of transportation so that this issue was left in doubt, it would not appear harmful to fail to define same.

We have not discussed in detail these propositions, because none of them seem to seriously suggest error.

Being unable to agree with any of appellant’s contentions, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

A re-examination of the questions renewed by appellant in his motion for rehearing has not led us to believe that they were incorrectly disposed of in the original opinion.

The motion for reheáring is overruled. 
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