The opinion
ON REHEARING.
(8, 9) On this application the appellant questions the statement in the original opinion: “The evidence tends to show that the witness Dean, by prearrangement with a ‘white man,’ went to Cullman and purchased the liquors seized by the Sheriff when defendant was arrested, and that this white man agreed to have some one meet Dean at the station to assist him in carrying the liquors away from the station” — the appellant asserting that the declaration of Dean to the effect “that he (Dean) was expecting the defendant’s hack to meet him,” made at the time of the seizure of the liquors and the arrest of Dean, is the only evidence tending to show the facts stated. Able counsel for appellant in making this assertion in the application undoubtedly overlooked the fact that Dean was examined as a witness, and testified: “That a white man had sent him to Cullman to buy the liquor and that he would have a hack to meet him on west side upon his return, and, seeing the defendant’s hack there, that he thought that was the hack that was to be sent to meet him.”
The defendant was there when the train arrived on the “west side,” and when Dean left the train he started to defendant’s vehicle. These facts clearly authorize the statement made in the opinion, aside from Dean’s declaration. Moreover, in passing *506 on the refusal of the affirmative charge, all the evidence both of "the defendant and the state was subject to review. The evidence stated above prima facie shows a conspiracy, and, if it was error fo admit the declaration of Dean- at the time it was admitted, injury was averted by the testimony subsequently offered showing such conspiracy.
(10) It is further insisted that there was no evidence to •show that Dean was guilty of transporting liquor for another .along a public street or highway, and that therefore the defendant could not be convicted for aiding or abetting. Dean’s own evidence shows that the liquors were not his, that he bought "them for a white man, and that he had been convicted and was serving a sentence, as the jury had a right to find from his evidence, for this identical offense. The defendant testified: “Before turning off to go to the depot, I was going along Moulton street from the west to the* east, and turned out into a road which at that time ran through a field from Moulton street down fo New Decatur depot. This was- a public road, and as I got •opposite the New Decatur depot Mr. McCulloch told me to stop, and about that time we heard the whistle blow for the incoming accommodation train. If Mr. McCulloch had not stopped me, I was going to follow this road down to the street which crosses fhe Louisville & Nashville Railroad a block further south of the depot and then come up the track to where the depot stands. When Mr. McCulloch told me to stop, I did so, and in a very few minutes the accommodation train came. Charley Dean got off the train on the west side carrying a valise in each hand and started in our direction, when McCulloch halted him and arrésted him.”
McCulloch’s testimony shows that the defendant drove his hack on the west side of the tracks at the depot and stopped. This evidence afforded an inference that when Dean alighted from the train he started in the direction of defendant’s hack along this public road traveled by the defendant when he stopped, and if the jury found this to be true, even though he only took one or more steps along the road, he would be guilty of transporting the liquors along the highway. The evidence also afforded an inference that the liquors were being transported by Dean for another, to wit, the “white man,” and if defendant was at the depot with Dean’s knowledge, or by prearrangement with Dean and the white man, on the principles discussed in the original *507 opinion he was properly convicted. The application is therefore overruled.
Application overruled.