One Harper drove a truck to Fairfield from Waco, leaving about 5:30 P. M. The distance would be sixty or seventy miles. He testified as a witness, and said that his instructions were to go to a drug-store on the square at Fairfield; that he there was instructed to follow a car, which he did; said car was a Chrysler roadster with three men in it; one man was Roy Pickett. Harper followed said car to a place where he and Roy Pickett loaded in the truck fifty cases of what was called canned fruit, but later was found to be whisky. After loading same Harper started back to Waco. At a point between Fairfield and Teague, the same Chrysler car stopped in front of his truck, and this appellant got out of it, asked Harper why he did not go faster, what was the matter with his truck, and told Harper to get there as fast as he could. Harper further said that on up the road he met the party of officers and recognized several of them. The testimony shows without contradiction that the Chrysler roadster was following the truck, part of the time ahead of it, and that said car passed and re-passed that containing the officers. Harper further testified that at a point about three miles from Waco Pickett "flagged him" and got on the truck with him; that Pickett had a sixshooter in his hand when he got on the truck; that he told Harper to turn the truck around, cross over to another road, and that they came into Waco on this other road. When they got to Waco Pickett directed Harper where to drive his load and helped him to unload it. The load was seized by the officers the morning following and taken to the court house. The officers testified that they met this truck accompanied by the Chrysler roadster on said road about 3:00 A. M., and they detailed the movements of both until the truck evaded them. They said they followed the track of the truck to Waco, and when they got there they went to a cafe. This could hardly have been later than 4:00 o'clock in the morning. Directly after they entered the cafe appellant and another man came in. The officers went out and found parked the same Chrysler roadster which they had seen with said truck on the Fairfield road. They had taken its number. Not only this, but when the whisky above referred to was being brought into the court house, appellant was observed there, and told a witness, who testified *Page 42 to it, that his money was in that whisky, and further stated that "they saw the sheriff out on the road, knew who he was when they passed him, — and that it was a good thing the sheriff had not stopped them, that they were ready for him." Appellant later told why he went "over there" with Roy Pickett to get this stuff, "to keep the hijackers off him."
This much is said to make plain the proposition that appellant not only furnished Pickett the money to finance the purchase of the whisky, but that he was present with Pickett in the same car during the transportation of the liquor in question from Fairfield to Waco in McLennan county, and that when they met the McLennan county officers a few miles out from the city Pickett got out of the Chrysler roadster, got on the truck with Harper, and that his two companions drove the Chrysler roadster into Waco, evidently following the officers' car to see what developed or to aid Pickett if he was further hindered.
What we have said also makes plain that we are of opinion the court did not err in his charge on principals, nor in refusing to charge that if appellant's connection with the transportation of the liquor ceased before the whisky entered McLennan county, the jury should acquit. Our statement in the original opinion to the effect that a part of the charge on principals should not have been given, is withdrawn. We find nothing in the record combating the proposition that appellant was a principal both in fact and law, nor is there contradiction in the testimony of his personally accompanying the truck as one of the occupants of the Chrysler roadster to where they met the officers some three miles from Waco.
The contents of bills of exception 1 and 2 evince no error. For all the bills inform this court as to matters therein objected to, same may have been germane to testimony before the court and known by the trial court to be material. It was entirely proper to show why Harper went to Fairfield, and what an occupant of the Chrysler roadster said to him on the way back to Waco.
Appellant's statements, fully set out in our original opinion, and to some extent above, affirmed his presence during said transportation not only while near Fairfield, but after they met the officers in McLennan county. Said admissions were direct evidence of his guilt, and as such relieved this case from any need of a charge on circumstantial evidence. As to the identity of the liquor, same was present when appellant referred to it and disclosed his interest in and connection with it. Pickett made the statement in appellant's presence *Page 43 that said whisky had by the officers was his. We think the evidence so overwhelmingly showed the presence of appellant during the transportation of liquor in McLennan county, that the matters set out in the affidavit of the Freestone county witness as to what he saw or did not see in Freestone county on the night the whisky was loaded and removed, were such as that a decision of the trial court against the proposition that had same been before the jury a different result would not have been likely, was not an abuse of the discretion of the trial judge.
The motion for rehearing will be overruled.
Overruled.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.