
    MODICA v. STATE.
    (No. 9065.)
    (Court of Criminal Appeals of Texas.
    June 9, 1926.)
    1. Criminal law <&wkey;772(6).
    Failure to charge on defense or defensive theory that defendant knew nothing of whisky found in his wagon held error.
    2. Criminal law <&wkey;772(6).
    It is reversible error to refuse to submit to jury defensive issues raised by testimony and properly brought to court’s attention.
    3. Infoxicatina linuors <fc>239 (4) — Refusal of special charge as to defendant’s statements denying- knowledge and ownership of whisky at time of arrest held error.
    In prosecution for transportation of intoxicating liquor, refusal of defendant’s special charge as to statements of defendant, when arrested, denying knowledge of negro driver’s intent to transport liquor at time he let him have his horse and wagon, held error.
    4. Criminal lav/ <&wkey;4l9, 420(3).
    Evidence that, after deputy sheriff arrested defendant, he searched premises on information secured from an Italian, held inadmissible, as hearsay. •
    
    5. Criminal law <&wkey;8l4(!7) — Refusal to instruct on law of circumstantial evidence held not error.
    Under evidence that, after arrest of negro driving defendant’s wagon containing whisky, defendant counted jugs and bottles and made complaint as to shortage and was then arrested, refusal to instruct on circumstantial evidence held not error.
    
      6. Criminal (aw <&wkey;507(l) — Refusal to charge that officer, having taken possession of whis-ky, and having wagon driven to defendant’s premises, was an accomplice, held not error.
    Where deputy sheriff arrested negro driver of defendant’s wagon which contained whisky, refusal to charge that deputy sheriff, by reason of arrest of driver, and taking whisky in possession and having it driven about two- miles to defendant’s premises, was an accomplice, held not error.
    
      7. Intoxicating liquors <&wkey;239(l) — Facts held to raise issue as to defendant’s being an accomplice in transportation of intoxicating liquor, requiring submission to jury of law of principals and accomplices.
    Where deputy sheriff arrested negro driver of defendant’s delivery wagon, which contained whisky, and required driver to take the wagon back to defendant’s store, and thereafter arrested him, facts held to raise issue as to defendant’s being an accomplice, requiring submission both on law of principals and accomplices, that, if jury believed defendant was present and acted as principal, and if defendant was absent and advising transportation, he would be an accomplice and under indictment could not be convicted as principal.
    Commissioners’ Decision.
    Appeal from District Court, Jefferson County; J. D. Campbell, Judge.
    John Módica was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    David E. O’Eiel, Howth, Adams & Hart, and John T. Hitching, all of Beaumont, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. States Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Jefferson county for the offense of transporting intoxicating liquor, and his punishment assessed at five years in the penitentiary.

Briefly stated, the record discloses that the deputy sheriff, on the night of the alleged offense, arrested a negro by the name of O’Neal, who was driving a delivery wagon belonging to the appellant, which contained 23 gallons of whisky. The arrest occurred on a certain street in the city of Beaumont* about two miles from the appellant’s store. The officer had the negro drive said wagon back to the store, and in a few minutes thereafter arrested the appellant.

It was the contention of the state that the appellant was the owner of said whisky, and that, when the wagon was returned to appellant’s store and the negro informed him that he had discharged his part of the work, appellant came out and counted the jugs and bottles of whisky, made some complaint as to the shortage therein, and drove said wagon about 10 feet, and, upon observ-; ing the approach of the officer, abandoned the wagon and ran into the store, where he was later arrested.

The appellant’s contention, and he introduced evidence to that effect, was that one of. his customers, a negro, had purchased groceries from him at night after his delivery team had been put up for the day, and insisted that he deliver said groceries to his house on account of the condition of his children, and, at the earnest request of said customer, he secured the services of the said O’Neal to take his (appellant’s) wagon and deliver said groceries at the home of the purchaser, and that he (appellant) knew nothing whatever of the negro’s using his team for the purpose of securing and transporting whisky, and that same was without his knowledge, and that he did not know that the negro had returned with the wagon until the officer arrested him and so informed him, and he denied having gone to the wagon and inspected the whisky therein, or having any knowledge thereof. This is a-sufficient statement of. the facts for this opinion.

The appellant complains of the action of the court in refusing to quash the jury panel, and the refusal of the court to grant his first application for continuance, and of the court’s overruling said motion for continuance in his absence, and in several instances of the argument of the prosecuting attorney in his closing argument to the jury, which consisted in part of said attorney’s criticism of appellant’s attorney in objecting to the court’s ruling out hearsay testimony, and of the refusal of the court to withdraw such argument from the jury. These matters are not likely to arise upon another trial, and the disposition we have made of this case makes ,it unnecessary to ■ discuss same at this time, but it might be proper to say, in the event that said argument of the district attorney should be made upon another trial, as presented in this record, the court should promptly suppress same.

The appellant, in several ways, complains of the failure of the court to charge on his defense or defensive theory in this case, which was that he knew nothing of the whisky in the wagon. The appellant’s attorney, at the proper time and in the proper manner, objected and excepted to the court’s refusal to submit the defensive theory in his general charge, and prepared and properly presented special charges requesting that appellant’s defense be submitted to the jury, as above stated, all of which were refused by the court and bills of exception taken thereto. We think the learned judge fell into error in refusing to submit the appellant’s defense to the jury and have them pass upon same. This court has many times held that it is reversible error to refuse to submit to-the jury the defensive issues when raised by the testimony and properly brought to the attention of the court. Erwin v. State, 10 Tex. App. 700; Schmidt v. State, 97 Tex. Cr. R. 196, 260 S. W. 848; Arenson v. State, 97 Tex. Cr. R. 430, 261 S. W. 787; Smith v. State, 97 Tex. Cr. R. 656, 263 S. W. 918; Garcia v. State, 101 Tex. Cr. R. 55, 273 S. W. 856.

In bill of exception No. 4 complaint is also made by the appellant to the refusal of the court to submit to the jury the appellant’s special charge to the effect that the state having proved on direct examination by its prosecuting witness Pollock that when he arrested the appellant the latter told him that he did not know anything about O’Neal’s intent to transport intoxicating liquor at the time he ■ let him have his horse and wagon, and if the said O’Neal was using said horse or wagon for the transportation of liquors, he knew nothing about it, and that he had let him have same only for the purpose of delivering groceries and not for the purpose of transporting liquors. We are of the opinion that the court should have given a charge on this issue, and that his refusal to do so was error. Menefree v. State, 67 Tex. Cr. R. 201, 149 S. W. 138; Sharp v. State, 81 Tex. Cr. R. 256, 197 S. W. 207; Miller v. State, 88 Tex. Cr. R. 77, 225 S. W. 382.

By bill of exception 19 appellant complains of the action of the court in permitting the state to prove by the deputy sheriff that, after he had arrested appellant and placed him in jail, he searched the premises of the appellant upon information which he had secured from some Italian. We think this evidence was inadmissibble, and, if presented upon another trial, same should be excluded, because it was clearly hearsay and the appellant could not in any manner be bound by the undisclosed motives of the prosecuting witness and his actions after appellant's arrest and after the alleged offense had been committed.

The appellant complains of the refusal of the court to instruct the-jury on the law of circumstantial evidence. There is no merit in this contention. It is also contended by the appellant that the court should have charged the jury that the prosecuting witness Pollock, by reason of arresting O’Neal and taking the whisky in possession and having same driven about two miles to appellant’s premises, was an accomplice. We are unable to agree with this contention and find nothing in the record authorizing a charge of this kind.

Complaint is made by appellant in bills of exception 5 and 7, and also in objections to the court’s charge, to the refusal of the court to charge the law of principals, and to the court’s refusal to submit his special charges on the law of accomplices, to the effect that, if the jury believed that the appellant was not present and acting with the said O’Neal in the commission of the offense, but was absent and advised, commanded, or encouraged the said O’Neal to commit the alleged offense, he would be an accomplice and should be acquitted; that appellant was indicted as a principal, and the state’s testimony tended to support this charge while, upon the other hand, the evidence produced by the defendant, if true, was a direct denial of any acts which would constitute him a principal under the law, and which was to the effect that he knew nothing of the transportation of the whisky or the ownership of same, and that he was not present at any time when said transportation took place and knew nothing of it until informed by the officers. However, the issue was raised by testimony introduced in this case and was a matter for the consideration of the jury as to whether or not the appellant, if he was not present and participating at the time in the transportation of the whisky, that he might have advised,’commanded, induced, or secured the negro O'Neal to have transported the whisky, and- thereby become an accomplice. We think, under the facts of this case, that the evidence raised the issue as to the appellant’s being an accomplice, and the court should have properly submitted the law applicable to the facts, both on the law of principals and the law of accomplices, and informed the jury that, in the event they should believe from the evidence that the appellant was not present and acting as a principal in the transportation of the whisky, but was absent and advising and encouraging the transportation of same, he would be an accomplice and under the indictment could not be convicted as a principal. The. special charges submitted and refused by the court are, we think, rather meager on the law of accomplices, but sufficient to call the court’s attention to his failure to cover this phase of the case in his general charge to the jury. For collation of authorities, see Branch’s Ann. P. C. pp. 347, 348, § 682; Burow v. State, on Rehearing, 85 Tex. Cr. R. 140, 210 S. W. 805.

For the- errors above mentioned, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER OTJRXAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     