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 thirty or forty 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.O. Long into the brush or shrubbery, and he got out and walked to a point about fifteen feet from the two jars of whisky. A few moments later, the witness Blitch appeared in his automobile and stopped his car 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 a 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 whisky was found, appellant's purpose being to see Sam Hanson, who lived on a farm nearby. An appointment *Page 520 was made that H.O. Long should return to the place at which they had parted. H.O. Long took with him a check for sixty dollars 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 that when he returned to the place of appointment with his brother, he was arrested, being some seventy-five yards from the sheriff when his whereabouts was first revealed. His 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 check introduced in evidence bore the date of May 9, 1923, some fifty days anterior to the date of the present transaction, and bore the indorsements of the appellant, H.O. Long and O.P. Buchanan. It also showed that payment had been refused because of want of funds.
Sam Hanson 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 ten 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 the purpose of sale they were acting together. Assuming that the evidence detailed pertinently raised such an issue, then the declarations of H.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 co-conspirators. See Branch's Ann. Tex. P.C., Sec. 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 *Page 521 and connectedly lead up to the homicide are relevant." Wharton's Crim. Ev., Vol. 2, p. 1732. "Where there is prima facie evidence of a conspiracy, the acts and declarations of each co-conspirator "done in the prosecution and furtherance of the common design, or which form a part of the res gestate 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.Crim. Rep.; Underhill on Crim. Ev. Sec. 492; Richards v. State,53 Tex. Crim. 400; Hays v. State, 90 Tex.Crim. Rep..
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 appellant'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. He connected himself with H.O. Long and showed their previous association upon the same day, their coming to the point where the whisky was found, and their engagement to re-meet 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.
Overruled. *Page 522