According to the testimony of the witness, J. A. Rogers, who testified upon the trial in behalf of the State, while sitting in a little store in the village of Needmore, he observed four men approaching. Two were in a hack and two were riding horseback. The men, one of whom was the appellant, entered the store, purchased and ate some articles of food. While in the store, the parties, according to the witness, were talking loud, and the witness smelled the odor of whiskey. The witness went out of the store before the appellant and his companions did and stationed himself near the hack.
Appellant and Fugate came out of the store and got in the hack. Burns, another member of the party, started to the horses. The witness told them to stop and took from the hack a suit case in which there was found wrapped up in a slicker six quarts of whiskey.
While the witness was engaged in making an examination of the contents of the suit case, the appellant sprang from the hack and began kicking the bottles, breaking some of them. The witness *Page 398 resisted the efforts of the appellant to break the jars and a scuffle ensued in which it seems that all of the bottles of whiskey which were in the suit case were broken. The witness said:
"Mr. Andrews had charge of the team when they got in the hack ready to start."
In addition to the liquor found in the hack, there was a quart behind the saddle on one of the horses.
In the motion for rehearing, appellant through his counsel, insists that upon the trial of the case there was an utter absence of proof that the appellant and his companions were acting together. The testimony of Rogers, the officer, to which we have adverted, is not seriously controverted by any other testimony in the case. On the contrary, the appellant's action in endeavoring to destroy the whiskey that was contained in the suit case is corroborated. The fact that the party, two on horseback and two in the hack, arrived at the store at the same time and were seen by the witness in company with each other is not disputed. They entered the store together and left it in company with each other.
The appellant's position that the evidence to the effect that there was a bottle of whiskey upon one of the horses should have been rejected, we think is untenable. It was a part of the res gestae. The relation of the parties in their associations, as shown at the time, and the fact that both on the horse and in the hack there was whiskey, the case being one of circumstantial evidence, were of some degree of relevancy. Aside from these facts, however, it occurs to the writer that the circumstances connected the appellant with the transportation of the whiskey which was in the hack. The jury was instructed that the State relied upon circumstantial evidence. It was in a manner secreted in the slicker which was in the suit case. The appellant's conduct in endeavoring to suppress the fact that it was whiskey by destroying it would support the inference that he knew it was in the vehicle and that he was connected with its ownership.
In the motion for new trial, the testimony of Hobert Fugate was taken. He was a cousin of the appellant and also related to some of the other members of the party. According to his testimony, the hack in question belonged to the appellant. The appellant was seen by the witness to overtake the hack about a mile from Needmore. Appellant got off his horse and got in the hack. Burns then got on the horse and the party went to Needmore. The witness was riding horseback in the rear of the hack, and had no knowledge when the appellant left Eustace. He knew that the horse upon which the bottle of liquor was found was the one off of which the appellant got at the time he got in the hack.
An application for a continuance was made on account of the absence of Hobert Fugate, who saw no whiskey in the hack intecedent *Page 399 to the time that the officer took charge of it. He had not been subpoenaed though process had been issued for him to Henderson County.
Without discussing it, we think the diligence set out in the application for a continuance is insufficient to comply with the requisites of the law contained in Art. 608, C. C. P., Moreover, the purported testimony of the witness is not such as would justify this court in holding that in refusing to grant the motion, the trial court abused the discretion which is vested in him by the statute mentioned. The circumstances, as above stated, were sufficient to support the finding by the jury that the suit case containing the whiskey was transported and that in its transportation the appellant was a conscious actor. Whether he connected himself with the transportation at the beginning of the journey or at a later period is of little consequence. That he was criminally connected with the transportation of the whiskey at some stage of its progress would suffice. Lamb v. State, 95 Tex.Crim. Rep.; Tullos v. State, 268 S.W. Rep. 174, and cases therein collated.
The motion for rehearing is overruled.
Overruled.