
    LONG v. STATE.
    (No. 8377.)
    (Court of Criminal Appeals of Texas.
    April 16, 1924.
    Rehearing Denied June 4, 1924.)
    1. Criminal law @=5419, 420(11) — Witness’ testimony that he reported negotiations with defendant’s brother to officers held not inadmissible hearsay.
    Witness’ testimony that he reported to officers the fact of his negotiations with-defendant’s brother for whisky held not, as to defendant, inadmissible hearsay.
    On Motion for Rehearing.
    2. Criminal law <@=>427(5) — Proof of statements by defendant’s brother held admissible as declarations of coconspirator.
    Evidence held to raise issue as to whether defendant and his brother were acting together and jointly interested in possession of liquor, so as to render admissible statements made by defendant’s brother without his presence as declarations of coeonspirator.
    3. Criminal law <@=423 (I) — Where conspiracy prima facie established acts and declarations of conspirators admissible against each other.
    Where there is prima facie evidence of a conspiracy, acts and declarations of each co-conspirator which form part of res gestse are admissible against any and all conspirators.
    4. Criminal law <@=1038(3) — Failure to request submission of issue precludes complaint.
    Failure to request submission of issue precludes complaint because it is not submitted.
    Appeal from District Court, Howard County ; W. P. Leslie, Judge.
    R. W. Long was convicted for possessing liquor for purpose of sale, and he appeals.
    Affirmed.
    John B. Littler, of Big Springs, and B. W. Baker, of Carthage, for appellant.
    
      Tom Garrard, State’s Atty., Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is under conviction for the possession of intoxicating liquor for the purpose of sale, with'‘punishment of three years’ confinement in the penitentiary.

A. E. Bliteh testified that between 12 and 1 o’clock on the day of the arrest of appellant and his brother, H. O. Long, he had a conversation with the latter in Big Springs in which H. O. Long said he had 10 gallons of whisky out north of the Experiment Farm near town which he Wanted to sell; that his (H. O. Long’s) brother was out there with the whisky. Objection was interposed to this testimony on the ground that appellant (R.. W. Long) was not present at the time of such conversation, and because no connection of appellant with H. O. Long in the matter had been shown. The bill is explained by the learned trial judge with the statement that the district attorney assured the court that in due time the development of the case would show a conspiracy between appellant and H. O. Long in possessing the whisky for the purpose of sale, and the court admitted such evidence as a declaration made by one conspirator while such conspiracy was pending and in furtherance of the same.

The testimony later developed that Bliteh told H. O. Long that he (witness) would come out to where the whisky was located. Bliteh immediately informed the sheriff relative to the matter, and the sheriff and one of his deputies proceeded to the place, where they found 10 gallons of whisky secreted in the brush. They discovered R. W. Long (appellant) leaving the place, he being about 40 yards from where the whisky was found at the time he was seen by the officers. Appellant was then placed under arrest, and the officers secreted themselves. In a short time H. O. Long and his nephew, a son of appellant, drove up in a car and turned out of the road at a point near where the whisky was concealed. H. O. Long was heard to express some impatience at the failure of “that fellow” to come, in a few minutes thereafter the witness Bliteh drove up in a car, whereupon the officers also placed H. O. Long and the son of appellant under arrest. The court committed no error in permitting the witness Bliteh to detail the conversation had with H. O. Long in the city of Big Springs. The evidence later developed was sufficient to show that he and appellant were acting together in the attempted sale of the whis-ky, and authorized the jury to conclude that appellant was left in charge thereof while H. O. Long sought a purchaser. It appears to be brought clearly within the rule relative to statements by a conspirator made pending the conspiracy, and in furtherance thereof, regardless of whether the other conspirators are present at the time he makes the statement. Shaw v. State, 89 Tex. Cr. R. 205, 229 S. W. 509; section 694, p. 353, Branch’s Ann. Penal Code.

The only other bill of exception relates to an objection on the part of appellant to the witness Bliteh testifying that after his conversation with H. O. Long heretofore detailed he reported this conversation to the officers, the objection being that it was a statement made by the witness Bliteh out of the presence of appellant, and was as to him hearsay and in- no manner binding on him. Bliteh did not state in detail before the jury what he reported to the officers, but merely testified that he did report the conversation. The question might properly be disposed of on the ground that the sheriff, without objection, later testified that he received information from Bliteh and acted on it. However appellant briefs the point on the ground that it was in effect permitting the witness Bliteh to support himself by his hearsay statement when no attack had been made upon him which would justify it. This was not the objection made at the time, as appears from the bill, and from the entire record it does not seem that such was the purpose of the state in making the proof. The authorities to which we are referred (Brent v. State [Tex. Cr. App.] 252 S. W. 500; Holmes v. State, 52 Tex. Cr. R. 352, 106 S. W. 1160; Long v. State, 58 Tex. Cr. R. 28, 124 S. W. 640; Dorman v. State, 64 Tex. Cr. R. 104, 141 S. W. 526) do not appear, to be in point as we understand the record. The witness testified as a fact that he had a certain conversation with H. O. Long, and to the additional fáct that he reported the matter to the officers. Upon that- information the officers acted, and they testified to facts learned by them not from Bliteh, but as a result of acting on .information from him. We think the principle announced in Huey v. State, 81 Tex. Cr. R. 554, 197 S. W. 202, Marta v. State, 81 Tex. Cr. R. 135, 193 S. W. 323, and Willman v. State, 92 Tex. Cr. R. 77, 242 S. W. 746, controls. It appears to have been only a method of connecting up the testimony and accounting for the presence of the officers where the whisky was discovered and the arrests made.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

Appellant maintains that, aside from the declarations of H. O. Long made out of the presence of the appellant', there is wanting evidence that H. O. Long and the appellant were conspirators.

Satterwhite and McConnell went in their automobile, traveling on the Lamesa road, to a point near the Experiment Farm in Howard ’ county. They observed automobile tracks indicating that an automobile had turned from the road and gone into the brush. There they found two five-gallon jars of whisky hidden in the shrubbery. At the time R. W. Long was observed about 30 or 40 yards distant, traveling in a direction taking him away from the locality in which the whisky was found. He was taken in custody, and the circumstances detailed by the witness were such as justified the conclusion that if he had not been in the brush or shrubbery he would have been previously seen. Soon after he was taken in custody H. O. Long appeared in an automobile in company with the son of the appellant. The car in which they were riding was driven by H. 0. Long into the brush or shrubbery, and he got out and walked to a point about 15 feet from the two jars of whisky. A few moments later the witness Blitch appeared in his automobile and stopped his ear at the same point at which the car driven by H. O. Long was stopped. While H. O. Long and his nephew, the son of the appellant, were engaged in a conversation with the witness Blitch, they were arrested by the sheriff. Before going to the place where the arrest was made the sheriff had k conversation with Blitch, who had previously seen and talked to H. O. Long in the town of Big Springs.

According to the appellant, he and his brother, H. O. Long, came to Big Springs together, and from there came in their automobile- to the point at which the whisk-y was found, appellant’s purpose being to see Sam Hanson, who lived on a farm near by. An appointment was made that H. O. Lpng should return to the place at which they had parted. IT. O. Long took with him a check for $60, which had been made by the son of Sam Hanson, payable to the appellant. According to the appellant, it was their understanding that H. O. Long would go back to the city and endeavor to cash the check which had been previously dishonored, and that the appellant would wait for him at the place on the road where they had parted, which place was near the Experiment Farm and near the Lamesa Highway. Appellant wanted to see Sam Hanson with reference to buying some tools; also to see what Parrish Hanson was going to do about the check, that is, to see if he was going to pay it. H. O. Long was to return with the check in case it was not paid, and appellant would then endeavor to collect it by getting Sam Hanson to pay it. According to the. appellant, he failed to find Sam Hanson after making two trips to-his field, and when he returned to the place of appointment with his brother he was arrested, being some 75 yards from the sheriff when his whereabouts was first revealed. He disclaimed any knowledge of the presence of the whisky or any connection with it. The check mentioned had been previously given to H. O. Long by the appellant for the purpose of paying a debt due because of money borrowed by the appellant from H. O. Long and loaned to Parrish Hanson. The cheek introduced in evidence bore the date of Hay 9, 1923, some 50 days anterior to the date of the present transaction, and bore the in-dorsements of the appellant, H. O. Long, and O. P. Buchanan. It also showed that payment had been refused because of -want of funds.

Sam Planson testified that before his arrest appellant had a conversation with the witness about buying some tools, and that subsequent - to his arrest and after his release from custody he had another conversation with him in which the appellant said that he wanted to see Parrish Hanson.

The circumstances detailed are deemed sufficient to present an issue of fact as to whether in the possession of the 10 gallons of whisky found by the officers at the time of the arrest of the appellant and H. O. Long they were each interested; that is, whether in the possession of the liquor for Ihe purpose tof sale they were acting together. Assuming that the evidence detailed pertinently raised such an issue, then the declarations of IT. O. Long in pursuance of his efforts or arrangements to sell the whisky and his acts with reference thereto would become admissible against the appellant under the 'well-established rule of evidence touching the declarations of coconspirators. See Branch’s Ann. Tex. P. C., § 694. The conspiracy, of course, is not to be established by the acts and declarations of H. O. Long in the absence of the appellant, but “when the'concert of action is once established, all of the facts and circumstances which preceded and connectedly lead up to the homicide are relevant.” 2 Wharton’s Crim. Ev. p. 1732. “Where there is prima facie evidence of a conspiracy, the acts and declarations of each coconspirator ‘done in the prosecution and furtherance of the common design, or which form a part of the res gestas of any act designated to advance the object of the conspiracy which is already in evidence, are admissible against any or all of the conspirators.’ ” Kipper v. State, 45 Tex. Cr. R. 379, 77 S. W. 611; Underhill on Crim. Ev. § 492; Richards v. State, 53 Tex. Cr. R. 400, 110 S. W. 432; Hays v. State, 90 Tex. Cr. R. 195, 236 S. W. 463.

In the present instance H. O. Long and the appellant were brothers. They came to Big Springs together. They went together to the point where the whisky was afterwards found. They parted, appellant remaining in the vicinity of the whisky, and H, O. Long returning to Big Springs, where he made an engagement with Blitch to sell him the whisky in question. Blitch revealed this intention to the officers, who went to> the place where H. O. Long and the appellant • had separated, and there found the whisky and the appellant. H. O. Long and the appel.lant’s son were not, it is true, immediately at the whisky, but were in such proximity to it and. under such circumstances as to justify the jury in believing that the appellant was in custody of the whisky, and that H. O. Long was acting with him. This is emphasized' by the appellant’s testimony in which he explained his presence. We connected himself with H. O. Long and showed their previous association upon the same day, their qoming to the point where the whisky was found, and their engagement to remeet there, their joint possession of the check, the explanation of which by the appellant was not such as rendered it free from question.

In the light of the oral argument and the ably prepared motion for rehearing, we have examined the record and are constrained to the view that the law was not transgressed in receiving in evidence the declarations of H. O. Long. ’

The suggestion in the motion that the court did not submit to the jury the question of conspiracy is not available for the reason that the record does not show that the court was requested to submit that issue, or that there was complaint of his failure to do so at the time of the trial.

The motion for rehearing is overruled. 
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