Calvin v. State

MORROW, Presiding Judge. The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year. According to the witness Carter, a constable, he, in company with officers Massey and Hays, went at night-time to an island consisting of something over one hundred acres of land, situated in Lake Worth. The island was reached by going in a boat. They observed a still at which four men were present. The still was situated in a woods where there was a little underbrush. The witness and his companions secreted themselves at a point about twenty-five steps distant from the still, which was connected and under which a fire was burning.- Whisky was in process of manufacture, and there was also whisky about the still. The conduct of the parties at the still was described by the witness. Each of them was taking part in the manufacturing operations. Haley had been away and returned in a boat. A conversation occurred in which they all took part and in which references were made to the officers. The matter of keeping watch was discussed, and appellant remarked: “Give me one more drink and I will go out there and mow them down like Johnson Grass.” Crawford expressed the wish that Carter would appear; that he would like to build a fire under him. Appellant said that “he would like to see Carter and his kid come down and take him; that no one was going to take him.” The argument as to■ which should go on picket duty resulted in Haley picking up a shotgun and stating *259 with an oath that he would go and would come back. After walking a few steps he encountered the officers, one of whom said: ‘ ‘ All right, Mel, put them up.” Haley made a demonstration with his gun, and said, “By”, when he was shot. There was testimony that his gun was loaded. When the officers fired, the parties at the still ran and began firing. The blazing fire made a light. There was also a lantern .at the still, but that was put out when the firing began. Crawford fired at Carter. Appellant at the time was some twenty-five feet distant from Carter. During the melee, shots passed through the coat which Carter was wearing. Crawford and Haley were arrested that night. Appellant and Gray were arrested on the following morning while still on the island. The shotgun which had been fired by Crawford was described. It contained two empty shells. Shells were also found on the ground near where the gun was found. Ammunition was found both upon the grqjind and in the boat which had been used by Haley. The shells contained buckshot. According to appellant’s theory, he was forty-three years of age, resided with his mother, and was engaged in farming. He had gone to the lake for the purpose of fishing, and had some trot-lines there. While he and Crawford were fishing, he observed a lantern and a fire, and out of curiosity went to the fire and found Haley near the stills out of which whisky was running at the time. There was some whisky also on hand. Haley started away, his purpose being unknown to the appellant, and soon afterwards shots were fired. When this occurred, he had been at the still about thirty or forty minutes, but had done nothing towards the making of the whisky and had no interest in it; that he had no intent to spend the night there but did intend to get some whisky before leaving. He fled upon the beginning of the firing and did no shooting. He saw guns upon the ground. He spent the night upon the island, and about daybreak he and Gray went down to the landing, where they were arrested. Gray also fled upon the beginning of the shooting. Appellant later went to the place where the still had been located, in company with one Egan. They observed the location of the bullet marks upon the trees, and also examined the brush and made an .experiment to see whether the parties at the still could be seen from the place where the officers were supposed to have been. He testified that when a fire was burning, the identity of the men could not be determined: that he could see the forms but could not distinguish the parties. He denied having any gun at the time of the incident, and also denied making the remarks attributed to him by the witnesses. Several other witnesses who were with Carter testified in substance as he did, connecting all the parties mentioned with the transaction. There are a number of bills of exception complaining of the admission in evidence of the acts and declarations of Crawford, Haley' and Gray, which were described by the witness and the other offi *260 cers at the time of the transaction and leading up to the time of the arrest. Against the admission of this testimony, the point is made that this evidence did not portray his acts and were therefore not chargeable to him. If the testimony of the State witnesses is to be believed, appellant, Haley, Crawford and Gray were all engaged in the unlawful manufacture of intoxicating liquor, and from their conversations it appeared that they had formed a conspiracy to resist' arrest and had provided themselves with arms: that when the officers appeared, Haley was shot in the attempt to resist the arrest, and the shots fired by the others were in pursuance of the conspiracy and in furtherance of the common design. .. A detailed discussion of the bills raising this question is deemed unnecessary. The testimony was admissible under the well-established rule governing the admissibility in evidence of the acts and declarations of the co-conspirators. Richards v. State, 53 Texas Crim. Rep., 400; Hays v. State, 90 Texas Crim. Rep., 192; Shaw v. State, 89 Texas Crim. Rep., 205, 229 S. W. Rep., 510; Gerber v. State, 90 Texas Crim. Rep., 37, 232 S. W. Rep., 334; Thompson v. State, 90 Texas Crim. Rep., 15, 234 S. W. Rep., 401. The receipt of the evidence mentioned was also justified under the res gestae rule. Hardy v. State, 89 Texas Crim. Rep., 469, 231 S. W. Rep., 1097. . Complaint is made of the' refusal of the court to receive in evidence details showing the location of the wounds upon Haley. The excluded evidence would have shown that one was upon the breast and the other upon the side of Ms back. It may be res gestae but the harmful consequences of excluding it are not apparent. If .Haley were on trial for an assault upon the officers or they for assault upon him, the matter might be material. Appellant sought to show by his relatives and those of Crawford that before leaving their homes on the afternoon preceding the commission of the offense, they had made declarations to the effect that they were going to the island fishing with their trot-lines. There are instances in which when the prosecution relies upon the acts or declarations of th.e accused on trial to show malicious or criminal intent, his prior statements may be introduced in explanation thereof. See Jackson v. State, 55 Texas Crim. Rep., 79; Watt v. State, 90 Texas Crim. Rep., 447, 235 S. W. Rep., 890, and cases collated. It is believed that the application of this exception to the rule against hearsay testimony does not obtain in the present ease. The declarations that the appellant was going to the island for the purpose of fishing would not explain the State’s testimony that he was engaged in operating a still. The State did not rely upon his mere presence at the island. That he might have had trot-lines there had been engaged in fishing was not inconsistent with the State’s case. In his testimony, he conceded that he was present and had been for *261 some time when the raid was made upon the still. According to the. State’s testimony, he was taking part in its operations. The proffered testimony, we think, would be more accurately classified as an effort by hearsay evidence to corroborate his own testimony upon the trial. See Medford v. State, 86 Texas Crim. Rep., 239; Hutchinson v. State, 58 Texas Crim. Rep., 228; Watt v. State, supra. The rejection of the testimony of the witness Shaw concerning the experiment made by him after the transaction in order to demonstrate that the officers could not have identified the appellant and his companions at the still upon the occasion of the arrest was, we think, properly rejected because it was an experiment and is not shown to have been made under the same or similar conditions prevailing at the time of the transaction. Whether this be true or not, however, the appellant concedes in his testimony that, he was present. That, the others present were those named by the State’s witnesses is likewise undisputed. While on the stand, a witness testifying to the good reputation of the appellant for truth and veracity, was asked on cross-examination if he had heard anyone say that the appellant’s reputation was good for anything. It is the position of the appellant that the, question extended the inquiry touching his reputation beyond the. matter of veracity. This is not clear. The question perhaps should be interpreted as relating to the matter under investigation and related by the witness. In any event, it was harmless. The witness answered, “yes, sir”, and proceeded no' further. See Jinks v. State, 33 S. W. Rep., 868; Shaw v. State, 45 S. W. Rep., 597; Jackson v. State, 77 Texas Crim. Rep., 347 S. W. Rep., 521; Ray v. State, 60 Texas Crim. Rep., 138, 131 S. W. Rep., 542. The other bills of exception in the record have been examined but present nothing demanding a reversal of the judgment, nor requiring a discussion. ' The judgment is affirmed. Affirmed.