In the light of the appellant's motion for rehearing we have made the most careful examination of the statement of facts and the record of which we are capable.
From the testimony of the state's witnesses, it is made manifest that the appellant and Slim Smith, while approaching the appellant's house, observed an officer and fled, taking different courses. Appellant had a sack in one hand and a package in the other. Whether Smith was carrying anything the officer could not say. Just before the officer overtook the appellant he struck the fence several times with a sack which he had in his hand, and then threw the sack over the fence to the east side. The officer observed the odor of whiskey, arrested the appellant and conducted him to his home, and then returned to the place of the arrest and picked up an article which he described as a "tester." He returned to the house and in a short time thereafter, *Page 334 in company with another officer, went to the place where the sack was thrown and picked up a sack containing a jar of whiskey, some broken glass and three jar tops. The sack, ground and fence all bore evidence of having had whiskey spilled upon them.
From the appellant's witness, Holliday, it was shown that before the arrest, he observed Smith deposit something on the east side of the fence about fourteen feet from the appellant, who was near the fence. According to Holliday, after depositing the object in the brush, Smith had a conversation with the appellant. He saw them approach the appellant's house and saw them run upon observing the officer. Smith had been sojourning at the appellant's home. On his direct examination, Holliday said that he saw nothing in the hands of the appellant, but on cross-examination, said that as the appellant started to run, he had a sack in his hand until he got to the fence; that Smith also had something in his hand and was going in another direction; that he had something on his shoulder like a sack. He also said that he saw the appellant strike the fence with a sack two or three times just before the officer reached him. Tarver, another witness, testified that on the day after the arrest of the appellant, he and the witness went to a point inside of the field (which would be on the west side of the fence) and there found a sack which had some broken glass and three jar tops in it.
Appellant contends that his defensive theory, namely, that Smith was the offender, was not submitted to the jury. The evidence seems conclusive from both the state and the appellant's witnesses that the appellant possessed a sack; that he struck it against the fence several times; that he threw it over to the east side of the fence about the time the officer reached him; that the officer, soon after the arrest, found it and identified it upon the witness stand; that it contained a jar of whiskey, some broken glass and jar tops. If it be conceded that Smith also had a sack with whiskey in it, that fact would not exculpate the appellant. The evidence supports the theory that they were both transporting whiskey; that they were acting together as principals in whatever was done, but we perceive no testimony which would warrant the acquittal of the appellant upon the ground that Smith alone was the offender.
The motion is overruled.
Overruled. *Page 335