
    RICE v. STATE.
    (No. 3734.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law <@=>406 — Evidence—Statements of Accused.
    Where a police officer was merely making an investigation as to defendant’s possession of a sack containing medicines, and made no arrest until after the investigation, defendant’s statements, after the officer had asked him to go with him, to the effect that he was taking the medicine to a certain place for delivery, the testimony of the one to whom defendant said he was to deliver it that he had never ordered it, and defendant’s reply that such person knew he had ordered it, were not inadmissible on the ground that defendant was under arrest.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. <@=>406.]
    2. Larceny <@=>40 — Complaint—Matters to be Proved.
    Under a complaint alleging that defendant fraudulently took 500 asperine tablets, it was incumbent on' the state to prove that the tablets taken were asperine, as this was descriptive; but it was not necessary to prove their exact number, as that was in no way descriptive, but related solely to the quantity taken.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 102, 126, 160; Dec. Dig. <@=>40.]
    3. Criminal Law <@=>730 — Evidence—Character — Argument of Counsel.
    The county attorney’s statement that he did not know whether it was the first time defendant had been charged with an offense presented no error, where the court sustained the objection that, as defendant had ‘not put his character in issue, the state could not attack it, and instructed the jury not to consider it, and gave the defendant’s special charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <@=>730.]
    4. Criminal Law <@=>829 — Instructions—Requests Covered.
    In a prosecution for larceny, where the court instructed, as to defendant’s explanation of his possession, that if he was in possession of the property described in the information for delivery to some other person for his alleged employer he was not guilty, it was unnecessary to give special charges asked on that issue.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829.]
    Appeal from Criminal District Court, 'Dallas County; W. L. Crawford, Jr., Judge.
    Jim Rice was convicted of theft, and he appeals.
    Affirmed.
    
      O. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft, and his punishment assessed at a fine of ?5 and 30 days’ imprisonment in the county jail.

R. A. Aldrich testified: That he was an officer of the city of Dallas, and on the 2d of February he saw appellant, between San Jacinto and Bryan streets with a sack on his shoulder. That he examined the sack and found it contained medicines, one article being a bottle of asperine tablets, with the label on it: “500 Compound Tablets, Asper-ine, five grains, Manufactured and guaranteed by the First Texas Chemical Company, Dallas, Texas.” That he asked appellant where he was going with this medicine, and that appellant replied he was working for the chemical company, and was taking the medicine to Williams’ drug store for delivery. He asked appellant for the order shegt, and appellant made a pretense as if searching for it. When appellant did not find the order sheet, Officer Aldrich told appellant he would go with him to the Williams Drug Company and see if he had ordered the. medicine. That when they got to the Williams Drug Company he asked Dr. Williams if he had ordered the medicine, and Dr. Williams replied, “No, I never ordered anything from the First Texas Chemical Company in my life”; that he purchased from the Griener-Kelly Drug Company. Appellant replied to him, “You know you ordered this stuff,” when Dr. Williams replied, “I did not order that medicine.” The officer says he then arrested appellant, and took the sack of medicine. A bill of exceptions was reserved to the admissibility of all this testimony, he contending that he was under arrest. The officer says he did not arrest appellant until after the conversation with Dr. Williams, and would not have done so had not the doctor stated he had ordered no such medicines. Appellant does not testify, and there is no testimony that he considered himself under arrest until after this conversation. So far as this record discloses, he went with the officer to the Williams Drug Company store willingly, and there insisted that the Williams Drug Company had ordered the medicine found in his possession. In the ease of

Hilcher v. State, 60 Tex. Cr. R. 180, 131 S. W. 592, Judge Davidson, speaking for the court, held:

“It is true the officer said he did not intend to let him get away until he had satisfied himself about the matter,' and that after he satisfied himself about the matter he did arrest appellant. Appellant was not conscious of the fact', so far as the record is concerned, that he was to be arrested, and it is not shown, as we understand this testimony, that he was under any duress, or that he believed he was under duress, when he made the statement. We are of the opinion therefore these bills do not justify this court in reversing the judgment.”

This is peculiarly applicable to the facts in this case. It is merely shown the officer was making an investigation, and after the investigation he determined to and did arrest appellant, but no arrest had been made nor determined upon until after the investigation. Girtman v. State, 73 Tex. Cr. R. 158, 164 S. W. 1010; Hiles v. State, 73 Tex. Cr. R. 23, 163 S. W. 717; and cases cited in these two opinions.

Appellant seems to have made his defense on the theory that, as the complaint alleged that he did fraudulently take 500 as-perine tablets of the value of $2.50, it was incumbent on the state to prove that the bottle contained 500 tablets, and no less. Objections to testimony along this line were made, and special charges requested asking the court to instruct the jury that, if the state had not shown by the evidence beyond a reasonable doubt that appellant took 500 asperine tablets, they would acquit. This is not the law. Of course, it was incumbent on the state to prove that the tablets taken were asperine tablets, as this was descriptive of the property taken; but it was not necessary to prove the exact number of tablets— this is in no way descriptive of the property, but relates solely to the quantity taken. And under such an allegation, if the state proved appellant took 100, 200, or any other number of asperine tablets, and they had a value, a conviction would be authorized. Jones v. State, 44 S. W. 162.

In another bill it is complained that in the argument the county attorney stated that they did not' know whether or not this was the first time appellant had been charged with an offense; that the defendant had not put his character in issue, and the state could not attack it. On objection, the court at once sustained the objection, and instructed the jury not to consider the remarks, giving the special charge requested by appellant. This presents no error. Mercer v. State, 17 Tex. App. 467.

The court instructed the jury in regard to the explanation of defendant of his possession of the property in the following language:

“You are further instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant was found in possession of certain asperine tablets, if any, described in the information in this cause by Officer Aldrich, but you further find, or have a reasonable doubt thereof, that.at the time the defendant was so found in ’ possession of said tablets, if any, that defendant had said tablets in his possession for the purpose of delivering same to the Williams Drug Company or any other person, firm or corporation for J. S. Keene of the First Texas Chemical Company, then, if you so find, you will acquit the defendant and say by your verdict not guilty.”

It was therefore unnecessary to give the special charges requested on this issue.

The judgment is affirmed. 
      •<§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     