The offense is unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of three and one-half years.
From the state's testimony the jury would have been justified in concluding that Mrs. Rosa Broughten had made arrangements to purchase five gallons of whisky; that the whisky was brought to her house by the appellant; that no one accompanied him. there. He admitted that he arrived at the premises in an automobile and entered the back door about the same time that the whisky was found by the officers upon the back porch. The officers were in the house at the time of the arrival of the appellant. A conversation took place between him and Mrs. Broughten which the officers did not hear, but which she detailed, stating in substance that she had arranged for the purchase of the whisky and was expecting it to be brought to her house by some person, and at the time she became aware *Page 674 that the whisky was there, no one was present save appellant and the officers.
Bills of Exceptions Nos. 1, 2, 3 and 4 relate to the same matter. From these bills, as qualified, it appears that officers entered and searched the house of Rosa Broughten with her consent and found therein ten half-gallon jars of whisky which had been placed in the house by the appellant. He was not the owner of the house nor an inmate thereof, and it was the contention of the state that he was not in a position to complain of the search or proof of the result thereof. A similar state of facts was before this court in the case of Craft v. State, 295 S.W. 617. The conclusion there reached and stated seems determinative of the present controversy against the accused.
In bill No. 5 complaint is made of the refusal of the court to charge upon accomplice testimony as applied to the witness Rosa Broughten.
The court qualified the bill in substance to the effect that there was no evidence upon which to base a charge on accomplice testimony as relating to Rosa Broughten. Our examination of the statement of facts leads to the same conclusion. In a prosecution under Art. 666, P. C. 1925 (the statute upon which the appellant's conviction rests), it is said in Art. 670, P. C. 1925:
"Upon a trial for violation of any provision of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial."
It appears from the testimony, if we comprehend it, that Mrs. Broughten's connection with the transaction was that of a purchaser. However, if she was cooperating with the appellant as a principal, transporter, or possessor, she would still come within the exemptions under the article quoted.
We understand from bill No. 7 that one of the half-gallon jars of liquor was exhibited to the jury at the time of the trial. The officer who had seized the liquor testified that the other jars had been destroyed. Against the introduction of the testimony the point is made that the statute, Art. 692, P. C. 1925, with reference to the duty of the officer seizing the whisky, to make a report in writing, etc., precluded the seizing officer from giving the testimony. The same point was made in Austin's case, 97 Tex.Crim. Rep., in which the objection was held untenable. See also Burns v. State, 99 Tex. Crim. 252.
In bill No. 10 there is complaint of a transaction in substance as follows: While Ramsey, a deputy sheriff, was upon the witness-stand, he detailed a conversation in which he, Mrs. *Page 675 Broughten and the appellant were present, and in which she said: "Well, if you have found any whisky out there, I guess that it is mine." Ramsey replied: "I know that is not so; it belongs to Mr. Dennis." Objection was urged that the statement was hearsay, irrelevant, opinion and conclusion, and the learned trial judge held it admissible as a part of the res gestae and as a part of a conversation in the presence of the accused. We are constrained to conclude that the bill of exceptions fails to show that in his reasoning the court was wrong. The statement was practically coincident with the discovery of the whisky a few minutes after the appellant arrived upon the premises. It appears from the statement of facts that the appellant was present and made no reply to this remark. The question of a declaration while under arrest is not involved.
There seems to have been no serious contention that the liquor was not intoxicating. It was described as "whisky," a known intoxicant. The complaint of the experiment demonstrating that the liquid was inflammable presents no prejudicial error.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.