24 S.W.2d 427
COOKE 
v. 
STATE.
(No. 12750.)
Court of Criminal Appeals of Texas.
November 27, 1929.
Rehearing Denied February 5, 1930.
Request for Leave to File Second Motion for Rehearing Denied February 19, 1930.
Page 428
        Commissioners' Decision.
        Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
        Tom Cooke was convicted of transporting intoxicating liquor, and he appeals. Affirmed.
        Scott & Jaworski and Joe W. Taylor, all of Waco, for appellant.
        A. A. Dawson, State's Atty., of Austin, for the State.
        CHRISTIAN, J.
        The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for 
two years.
Page 429
        The state's witness, Claude Harper, was employed by one McCrary as a truck driver; McCrary being 
engaged in the transfer business. Harper testified that he was instructed to go to Fairfield with his truck 
for the purpose of bringing a load back to Waco; that upon reaching Fairfield, pursuant to his instructions, 
he went to a drug store where he met a man who told him to follow a Chrysler roadster; that a Mr. Pickett 
was one of the men in the roadster, but that there were two men riding with him whom he did not know; 
that they went to a house where his truck was loaded with 50 cases of jars packed in cartons; that he did 
not know who loaded the truck, but that the men who had directed him to the house said that the jars 
contained fruit; that he then came from Fairfield to Waco with his load, being accompanied by a Chrysler 
roadster like the one he had followed to the whisky; he said that it was "either the same one or one just 
like it," and that the same occupants of the car at Fairfield were in the car that accompanied him to Waco; 
that Pickett rode with him on the truck to the limits of the city of Waco; that between Fairfield and Teague 
the Chrysler roadster stopped and appellant asked him (the witness) why he did not go faster; that he 
replied that he was trying to get in with the stuff, but that the truck was not running right; that appellant 
said, "Get there as fast as you can"; that from that time he did not see appellant again; that as he was 
going to Waco some officers passed him about four times, slowing up like they were going to stop him; 
that they drove along by his side for a short distance and then drove on in front of him; that Pickett, who 
was riding on the truck with him, carrying a pistol in his hand, directed him to turn around, which he did; 
that he drove back 300 or 400 yards and came on in to Waco on what is known as the Marlin road; that 
he carried his load to a house in Waco between Twenty-Fifth and Twenty-Sixth streets on Bosque 
boulevard; that he and Pickett unloaded the cartons containing the jars; that when he turned back, at the 
command of Pickett, the Chrysler car drove on into Waco; that he did not know he was transporting 
whisky.
        On the occasion in question, officers left Waco between 11 and 12 o'clock at night and drove out on 
the Springfield road. About 3 a. m. the truck driven by the witness Harper appeared. In the meantime the 
officers had been driving up and down the road waiting for the truck to come along. Upon seeing the truck 
coming toward Waco, the officers passed it, drove on about half a mile and then turned back. They then 
proceeded to follow the truck and a Chrysler roadster, which was between them and the truck. The 
roadster was about 300 yards behind the truck. They drove around the roadster and took position 
between it and the truck. Presently the truck slowed down like it was going to stop, and the officers drove 
on ahead. In a short while the Chrysler roadster passed the officers and stopped at a place on the 
Springfield road. The officers did not know who was in the Chrysler. They continued to follow the truck, 
but presently passed the truck on a hill. The Chrysler roadster then took a position between the car driven 
by the officers and the truck. The officers thought the truck was still following them and stopped at a point 
in the road in order to let the truck pass ahead of them. However, the truck did not appear, but the 
Chrysler did. The officers turned around and drove back to a point where it appeared that the truck had 
turned around and endeavored to track it from this point in to town, but lost track of it. The officers then 
drove to a café in the city of Waco, where they got out for the purpose of getting some coffee. While they 
were drinking the coffee, appellant and a companion walked in the café. Leaving the café, the officers saw 
the Chrysler that they had seen out on the Springfield road parked nearby. After conferring with Harper, 
the officers secured a search warrant and searched the house on Bosque boulevard pointed out by Harper 
as the place where the load had been delivered. Mrs. Pickett was present at the time the search was 
made. Seventy-two gallons of corn whisky were discovered. About 6:30 a. m. the whisky was taken to the 
court-house, unloaded, and placed in the vault. While the whisky was being carried to the vault by means 
of a hand truck, the district attorney stepped out of the sheriff's office into the hall. Appellant was sitting 
just across from the sheriff's office. The district attorney sat down by him. Tears came into appellant's 
eyes and he said: "Mr. Holt, (referring to the district attorney) that is my money that is tied up in that 
whisky. I feel sorry for that poor old s____ of a b____ and have felt sorry for him from the day he come 
back from the war, and I was trying to give him a start." The district attorney testified that appellant then 
began to tell him about the sheriff being out on the road. He said that appellant stated to him that he saw 
the sheriff and knew who it was when he first passed them; that it was a good thing that the officers had 
not stopped them; that if they had tried to stop them they were ready for them. The district attorney went 
into the sheriff's office and told him what had transpired between him and appellant. Appellant was 
requested to come into the sheriff's office, which he did. The sheriff asked appellant what he had been 
talking about, saying to appellant: "I never would have suspected you if I had not seen you in the café 
and if we had not come out and seen that Chrysler car." Appellant replied: "Mr. Stegall, (referring to the 
sheriff) you are not going to have any trouble with
Page 430
me. I never gave an officer any trouble in my life."
        At this point appellant made another statement, which the district attorney testified to as follows: 
"And then he proceeded to tell us as to why he was out there. That Roy Pickett was up against it, and that 
he had just gone with Roy to get this stuff to keep the hijackers off of him, and he said that he had 
advanced the money with which to pay for the liquor. We talked some little time then, and I do not know 
just who left first, but we left, and Tommie said that he could get hold of Roy Pickett and would bring him 
down there, and in about thirty minutes or an hour Roy Pickett came into the office and I talked to Roy 
Pickett a little."
        Appellant offered no testimony.
        The court charged on the law of principals. After giving the usual definition of principals, the jury 
were charged that all persons who shall engage in procuring aid or means of any kind to assist in the 
commission of the offense while others are executing the unlawful act are principals. This charge was 
timely and properly excepted to, with the request that the court instruct the jury that, if appellant 
furnished the money with which to buy the whisky, such act would not of itself make him a principal, 
unless he was personally present at the time the whisky was transported. Further, the court was 
requested to define accomplice and instruct the jury that, if they had a reasonable doubt as to whether 
appellant was an accomplice, he could not be convicted as a principal. We understand the rule to be that, 
if appellant furnishes the means by which the offense is committed, but is absent at the time of its 
commission, and is not then doing something in furtherance of the common design, so as to make him 
constructively present, he cannot be convicted as a principal. Hext v. State, 104 Tex. Cr. R. 46, 282 S. W. 
242, and authorities cited. At some point on the trip to Waco, whether in McLennan county or another 
county, appellant was present in the Chrysler roadster and had urged the transporter of the whisky to 
hurry on to Waco. The Chrysler car in which appellant was driving at the time he had the conversation 
referred to proceeded in to Waco. It is true that the witness Harper testified that appellant could have 
gotten out of the car and walked into Waco, but there is no testimony that appellant in fact did this. A 
short while after the officers left the point in the road where the truck had turned back they drove to a 
restaurant in Waco where they had remained but five minutes when appellant and a companion entered. 
Leaving the restaurant they saw the same Chrysler roadster parked outside nearby. On the same morning 
that the whisky was being placed in the vault in the courthouse appellant said that he had bought the 
whisky, and, in substance, that he had aided in transporting it to Waco for the purpose of keeping 
hijackers from getting it. He admitted that he had seen the officers on the road when they were following 
the truck. When, in effect, accused by the sheriff of being on the road, he offered no denial. These facts 
were not contradicted. We think they conclusively show that appellant was present when the whisky was 
being transported. The giving of the charge here complained of was proper under the facts.
        The fact that Harper may not have known that he was transporting whisky would not excuse 
appellant. One may be a principal who employs a person who cannot be punished to commit an offense. 
Article 68, Pen. Code; Duncan v. State, 86 Tex. Cr. R. 191, 215 S. W. 853. Hence it was not error for the 
court to refuse to instruct the jury to acquit appellant, if they had a reasonable doubt as to whether the 
witness Harper was an innocent agent.
        Nor do we think the court erred in declining to instruct the jury that, if they had a reasonable doubt 
as to whether the whisky was transported in McLennan county, appellant should be acquitted. We find no 
evidence in the record to the effect that appellant's connection with the transportation of the whisky 
ceased before it entered McLennan county. On the other hand we think the evidence is conclusive to the 
effect that appellant accompanied the truck in McLennan county.
        There being no evidence raising the issue, the court properly refused to charge on alibi.
        Complaint is made of the failure of the court to charge on the law of circumstantial evidence. We 
think the evidence of the transportation of the whisky is direct. If we are in error in this, we are of the 
opinion that the facts proven are in such close juxtaposition to the main fact as to be equivalent to direct 
testimony. Branch's Annotated Penal Code, § 1874. The officers went to the house pointed out by Harper 
as the place where the whisky was unloaded. They found a large quantity of whisky. Appellant admitted 
that he had bought the whisky, and made a statement to the effect that he had gone with Pickett for the 
whisky. He admitted that he saw the officers on the road the night they were following Harper's truck. 
According to Harper's testimony, appellant had gotten out of the Chrysler roadster while they were 
traveling toward Waco and urged Harper to hurry.
        Attached to the motion for a new trial is the affidavit of a witness claimed to be newly discovered. It 
was averred in the affidavit, in substance, that the witness knew appellant; that witness was at the drug 
store on the night Harper drove there in a truck; that the witness saw the occupants of the
Page 431
Chrysler car Harper followed; that appellant was not in the car. The motion for new trial contains 
averments relative to the newly discovered evidence. Assuming that the diligence was sufficient, we are of 
the opinion that, considered in connection with the testimony heard upon the trial, the learned trial judge 
was warranted in concluding that the new testimony was not such as would likely change the result, if 
produced upon another trial. Appellant offered no defense. The evidence showing guilt was 
uncontradicted, and, in our opinion, plainly connects appellant as a principal with the offense. The action 
in overruling a motion for a new trial, based on newly discovered evidence, will not be revised, unless it is 
apparent that the discretion vested in the trial judge has been abused to the prejudice of the accused. 
Coleman v. State, 108 Tex. Cr. R. 323, 300 S. W. 59.
        Failing to find reversible error, the judgment is affirmed.
        PER CURIAM.
        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.
        LATTIMORE, J.
        One Harper drove a truck to Fairfield from Waco, leaving about 5:30 p. m. The distance would be 60 
or 70 miles. He testified as a witness, and said that his instructions were to go to a drug store on the 
square at Fairfield; that he there was instructed to follow a car, which he did; said car was a Chrysler 
roadster with three men in it; one man was Roy Pickett. Harper followed said car to a place where he and 
Roy Pickett loaded in the truck 50 cases of what was called canned fruit, but later was found to be whisky. 
After loading same Harper started back to Waco. At a point between Fairfield and Teague, the same 
Chrysler car stopped in front of his truck, and this appellant got out of it, asked Harper why he did not go 
faster, what was the matter with his truck, and told Harper to get there as fast as he could. Harper further 
said that on up the road he met the party of officers and recognized several of them. The testimony shows 
without contradiction that the Chrysler roadster was following the truck, part of the time ahead of it, and 
that said car passed and repassed that containing the officers. Harper further testified that at a point 
about three miles from Waco Pickett "flagged him" and got on the truck with him; that Pickett had a six-
shooter in his hand when he got on the truck; that he told Harper to turn the truck around, cross over to 
another road, and that they came into Waco on this other road. When they got to Waco, Pickett directed 
Harper where to drive his load and helped him to unload it. The load was seized by the officers the 
morning following and taken to the courthouse. The officers testified that they met this truck accompanied 
by the Chrysler roadster on said road about 3:00 a. m., and they detailed the movements of both until the 
truck evaded them. They said they followed the track of the truck to Waco, and when they got there they 
went to a café. This could hardly have been later than 4:00 o'clock in the morning. Directly after they 
entered the café appellant and another man came in. The officers went out and found parked the same 
Chrysler roadster which they had seen with said truck on the Fairfield road. They had taken its number. 
Not only this, but when the whisky above referred to was being brought into the courthouse, appellant 
was observed there, and told a witness, who testified to it, that his money was in that whisky, and further 
stated that "they saw the sheriff out on the road, knew who he was when they passed him—and that it 
was a good thing the sheriff had not stopped them, that they were ready for him." Appellant later told why 
he went "over there" with Roy Pickett to get this stuff, "to keep the hijackers off him."
        This much is said to make plain the proposition that appellant not only furnished Pickett the money 
to finance the purchase of the whisky, but that he was present with Pickett in the same car during the 
transportation of the liquor in question from Fairfield to Waco in McLennan county, and that, when they 
met the McLennan county officers a few miles out from the city, Pickett got out of the Chrysler roadster, 
got on the truck with Harper, and that his two companions drove the Chrysler roadster into Waco, 
evidently following the officers' car to see what developed or to aid Pickett, if he was further hindered.
        What we have said also makes plain that we are of opinion the court did not err in his charge on 
principals, nor in refusing to charge that, if appellant's connection with the transportation of the liquor 
ceased before the whisky entered McLennan county, the jury should acquit. Our statement in the original 
opinion, to the effect that a part of the charge on principals should not have been given, is withdrawn. We 
find nothing in the record combating the proposition that appellant was a principal both in fact and law, 
nor is there contradiction in the testimony of his personally accompanying the truck as one of the 
occupants of the Chrysler roadster to where they met the officers some three miles from Waco.
        The contents of bills of exception 1 and 2 evince no error. For all the bills inform this court as to 
matters therein objected to; same may have been germane to testimony before the court and known by 
the trial court to be material. It was entirely proper to show why Harper went to Fairfield,
Page 432
and what an occupant of the Chrysler roadster said to him on the way back to Waco.
        Appellant's statements, fully set out in our original opinion, and to some extent above, affirmed his 
presence during said transportation, not only while near Fairfield, but after they met the officers in 
McLennan county. Said admissions were direct evidence of his guilt, and as such relieved this case from 
any need of a charge on circumstantial evidence. As to the identity of the liquor, same was present when 
appellant referred to it and disclosed his interest in and connection with it. Pickett made the statement in 
appellant's presence that said whisky had by the officers was his. We think the evidence so 
overwhelmingly showed the presence of appellant during the transportation of the liquor in McLennan 
county that the matters set out in the affidavit of the Freestone county witness, as to what he saw or did 
not see in Freestone county on the night the whisky was loaded and removed, were such as that a 
decision of the trial court against the proposition that, had same been before the jury, a different result 
would not have been likely, was not an abuse of the discretion of the trial judge.
        The motion for rehearing will be overruled.
On Application for Leave to File Second Motion for Rehearing.
        HAWKINS, J.
        Appellant calls attention to the fact that upon cross-examination of state's witness Harper he 
admitted that he had been in the "federal penitentiary." Based upon this alone it is urged here now for the 
first time that we should hold Harper to have been disqualified as a witness, and should discard his 
testimony, in which event it is claimed the other evidence is insufficient to support the conviction. This 
point has never been considered, it now being raised for the first time. It was not claimed upon the trial 
that Harper was incompetent to testify. No preliminary questions seem to have been directed towards 
developing facts to disqualify him, and, when it developed on cross-examination that he had been in the 
"federal penitentiary," it does not appear that any motion was made to withdraw the testimony on direct 
examination. No record proof of his conviction is shown. No bill of exception is found complaining of 
anything incident to the matter. The jury was instructed to consider Harper's conviction of a felony only in 
passing upon his credibility as a witness. There was no objection to such instruction. The conviction seems 
to have been regarded throughout the trial as bearing only on the impeachment of Harper. No point 
having been made in the court below that he was an incompetent witness, we cannot assume that he was 
such; the presumption under the record would be either that his competency had been restored, or that 
the verbal proof of his conviction of a felony was permitted for impeachment purposes only and not to 
disqualify him. Price v. State, 66 Tex. Cr. R. 400, 147 S. W. 243; Brown v. State, 101 Tex. Cr. R. 63, 274 
S. W. 588; Watts v. State, 67 Tex. Cr. R. 4, 148 S. W. 310; Harris v. State, 67 Tex. Cr. R. 423, 148 S. W. 
1071. For other authorities see note 26, art. 708, Vernon's Ann. Tex. Code Cr. Proc. It is not necessary to 
discuss whether an unpardoned convict, not in the penitentiary at the time of trial, is competent to testify. 
We only refer to subdivision 3, art. 708, Code Cr. Proc., and the amendment of such subdivision by the 
39th Legislature (1st C. S.), c. 13, p. 20, which was subsequent to the opinion Alexander's Case, 103 Tex. 
Cr. R. 620, 281 S. W. 852.
        The other questions suggested have already been considered.
        The request for leave to file second motion for rehearing is denied.