Appellant was convicted in the district court of Grayson County for the offense of transporting intoxicating liquors and his punishment assessed at confinement in the penitentiary for a term of two years.
The State's testimony shows that the defendant was in a Ford car with one Olin Vestal and that the officers stopped the car in Grayson County and found corn whiskey, which was intoxicating, in said car. There were about twenty half gallon fruit jars of whiskey in the car. The State used the witness Olin Vestal and *Page 282 proved by him that the whiskey belonged to this appellant and that he had bought it in Oklahoma and had brought it into Grayson County, across the Oklahoma line. The testimony further shows that the car belonged to Olin Vestal and that he was driving the car.
Appellant's first bill of exception complains of the action of the court in permitting the State to prove that at the time appellant was arrested he (appellant) said to the officer arresting him, "You are not going to arrest Vestal, are you? It is not his whiskey; it is mine. He hasn't got anything to do with it." This testimony was clearly admissible as res gestæ. Copeland v. State, 249 S.W. 495.
What has just been said with reference, to bill of exception No. 1 also applies to bill of exception No. 2, which raises practically the same question.
By bill of exception No. 3 complaint is made of the court's action in failing to instruct the jury that the witness Vestal is an accomplice, and in failing to give a proper charge on the theory that the said witness is an accomplice. This witness was not an accomplice, and the court did not err in failing to instruct the jury that his testimony must be corroborated. Chapter 61, Sec. 2-C, Acts of Thirty-seventh Legislature; Bailey v. State, decided by this court March 25, 1925, not yet reported.
Under the express terms of the statute above cited, a co-transporter of intoxicating liquor is directly excluded from the terms of the statute naming those who are accomplices.
By bill of exception No. 4 appellant contends that the evidence is insufficient to sustain a conviction. We have very carefully examined the Statement of Facts, and have reached the conclusion, not only that the evidence is sufficient, but it seems to be practically undisputed that the appellant is guilty as a principal of transporting intoxicating liquor, as charged in the indictment.
Finding no error in the record, it is our opinion that the judgment should in all things be affirmed.
Affirmed.
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.
ON MOTION FOR REHEARING.