Bannister v. State

Appellant urges that we were in error in disposing of his complaint at admitting in evidence proof that while the search was in progress two men drove up to the house and that Mr. Hull, appellant's father, waved to them, etc., the objection being that appellant was not shown to have knowledge of such conduct either on the part of the men or her father and hence could not be bound by it. Standing alone the incident seems to the present writer to be of so little probative force that a reversal would not be called for if the court was in error in admitting proof of it. The matter may not have been sufficiently elaborated in the original opinion to make clear the view we intended to express. The record is silent as to whether Mr. Hull was an inmate of the house; if so he could not have been ignorant of the conditions there as described by the officers. Whether or not Hull lived there, it does appear that as the officers approached the house one of them observed: —

"* * * Mr. Hull and Mrs. Bannister on the back porch — they were doing something with some tubs there; washing some bottles or jars or something — they were doing something with some tubs, because they poured it out when they saw us drive up."

The officers found on this back porch some tubs in one of which were the same kind of beer bottles found in the house. From the circumstances stated the conclusion might properly be drawn that Hull was assisting appellant in an unlawful enterprise then being conducted there, and that his act in waving at the two men was the conduct of a co-principal or co-conspirator pending the conspiracy and incident to the search then in progress. As thus viewed we *Page 163 think the incident was properly provable; it was the act of Hull in connection with the men driving up that rendered the incident provable, and not the independent act of the men themselves. However, if we be wrong in this view the incident does not appear to demand a reversal.

Believing the other questions to have been properly disposed of in the original opinion we pretermit a further discussion of them.

The motion for rehearing is overruled.

Overruled.