In the motion for rehearing, counsel for the appellant, Sam Murphy, earnestly contends that the evidence before the jury reflected by the record is not sufficient to meet the measure required by law to establish the offense of conspiracy. The statutes applicable are articles 1623, and 1624, P. C., 1925, which read as follows:
"The offense of conspiracy is complete, although the parties conspiring do not proceed to effect the object for which they have so unlawfully combined."
"Before a conviction can be had for the offense of conspiracy, it must appear that there was a positive agreement to commit a felony. It will not be sufficient that such agreement was contemplated by the parties charged."
Judicial interpretation of the statutes will be found in King v. State, 86 Tex.Crim. Rep., 216 S.W. 1091; Whitford v. State, 24 Texas App., 489, 6 S.W. 537; Johnson v. State, 3 Texas App., 590; Odneal v. State, 117 Tex.Crim. Rep.,34 S.W.2d 595.
In the light of the motion, the evidence has been carefully reviewed. The alleged parties to the conspiracy were Tony Caldarera, Joe Massala, and the appellant, Sam Murphy, all of whom resided in the city of Houston, Texas. Caldarera lived at 96 McGowan avenue, in a large apartment house with a store under it operated by him.
From the testimony of the witness Sanborn, it appears that on the 28th of September, 1930, officers, possessed of a search warrant, searched the house situated at 906 Tulane street, in which they found a large still in operation, a number of gallons *Page 52 of whisky, and about 800 gallons of whisky mash. The still was situated in a garage a few feet from the dwelling-house of Massala. The house was a cottage of five or six rooms. At the time of the raid the house was the dwelling of Joe Massala, who was present at the time the search was made.
Mrs. Massala testified in behalf of the state. In her testimony it appears that at the time of the search she was sojourning at a place on Stanley street in Houston; that there had been a temporary separation between her and her husband. At the time of the search, however, Massala lived at the place searched, namely, 906 Tulane street. During the time covered by the investigation, she and her husband lived at 2309 Ovid street, 201 Palmer street, and 732 Alston street. During the week the witness stayed with her husband at 906 Tulane street, Sam Murphy came there twice or three times. He brought with him some sacks, the contents of which the witness did not know. They were taken by Murphy up over the garage where the still was situated. Murphy also took stuff away from the still. It was in jugs. According to the witness, one of the sacks brought by Murphy contained sugar. She said that her husband told her that he was making whisky; that Sam Murphy and Tony Caldarera were paying him forty dollars a week and were paying all the bills on the house. Massala was to run the still for Caldarera and Sam Murphy for forty dollars a week. The sacks of sugar which the witness saw brought to the house were 100-pound sacks. There were other sacks containing rye and yeast, which looked like the same size as the sugar sacks. At the visits of Caldarera and Murphy, there were conversations between them in the Italian language which the witness could not understand and she could not state what was said. At each of the places named, except that at which the witness (Mrs. Massala) was visiting her mother on East 21st street, the still was operated and whisky made by Massala. Both Murphy and Caldarera were frequenters of the places. The manufactured whisky was sometimes taken away by a negro, sometimes by Caldarera and sometimes by Murphy. They would take five or six bottles or jugs at a time. After Massala was arrested, the witness heard a conversation between him and Sam Murphy in which Massala insisted that during his incarceration Murphy should supply Mrs. Massala with money. Murphy expressed the belief that Massala would be acquitted, and demurred at agreeing to support Massala's wife. He did, however, according to her testimony, promise to give *Page 53 her a small amount of money from time to time, and did at one time give her a dollar.
Johnnie McArdle testified that he saw yeast and whisky at Massala's house at 732 Alston street; that Massala carried whisky from the building; that the witness helped him as did also Caldarera; that the witness also saw Murphy at Massala's house.
Mrs. Gilbert testified that she knew Joe Massala and his wife when they lived at 732 Altson street; that she had seen the still in operation at Massala's house and had also seen Sam Murphy there.
The witness, Dorothy Yaggi, testified that she had seen Sam Murphy at the house of Massala when he lived on Ovid street; that Murphy came there often, sometimes every night; that when he left, he would take away jugs in a sack, put them in his car, and drive away. She also saw the still in operation in the building and heard the two men talking in Italian, but she could not understand what they said. She said that Massala would fill up the jugs with whisky and Murphy would carry them to the car.
Mrs. E. Yaggi testified that she visited the home of Massala on Ovid street; that she saw there a still in operation, also jugs, barrels, and whisky. She saw Murphy come from there a few times. He came there to see Joe Massala and talked to him; that they talked Italian which the witness did not understand. She saw Murphy at one time going into the room where the jugs of whisky and still were situated.
To prove a conspiracy, circumstantial evidence is available, and, generally speaking, reliance thereon is essential. See Wharton's Cr. Ev. (10th Ed.), vol. 2, p. 1671, sec. 888; Tex. Jur., vol. 9, p. 400, sec. 21; Bailey v. State, 42 Tex. Crim. 289,59 S.W. 900.
Having the principles stated in mind, we have no difficulty in concluding that the evidence before the jury was such as to warrant their finding that the appellant was guilty of the offense charged; that is to say, that the circumstances introduced in evidence go to show that the appellant was a party to a positive agreement to commit the felony charged in the indictment.
For the reasons stated, we are constrained to overrule the motion for rehearing.
Overruled. *Page 54