
    CASKEY et al. v. STATE.
    (No. 7108.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1923.
    Rehearing Denied Oct. 17, 1923.)
    1. Robbery <&wkey;24(I) — Evidence held to support conviction.
    Evidence held sufficient to support the verdict finding the defendants guilty of robbery.
    2. Criminal law (©=3366(3) — Statement made immediately after the robbery admissible as part of the res gestee.
    A statement made by a victim of a robbery, immediately afterwards, that among the money taken from him was a $20 gold piece, is properly admitted as part of the res gestae.
    3. Criminal law <&wkey;419, 420(10) — Facts testified to by officer were hearsay and inadmissible.
    An officer’s testimony as to a $20 gold piece taken from the'victims of a robbery, it appearing that he received his information from parties to whom victims had made such statement, was hearsay and inadmissible.
    4. Criminal law <©=>723 (3) — Address of district attorney held unobjectionable.
    The address of the district attorney to the jury that they were responsible for the enforcement of the law, that if they failed to convict defendants, the fault lay at their own door, was unobjectionable as being inflammatory or intimating that there were other robberies in that locality.
    On Motion for Rehearing.
    5. Criminal law <&wkey; 1169(2) — Admission of un-prejudicial evidence not reversible error.
    While it was error to permit an officer whoj made an arrest on a robbery to testify that he had been told that the victim lost a $29 gold piece, inasmuch as this fact was already in evidence, it was not so prejudicial as to call for a reversal.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Slim Caskey ánd Burney Ray were convicted of robbery, and they appeal.
    Affirmed.
    
      L. A. Dale, of El Paso, and Chas. C. Cren-shaw, of Hillsboro, for ■ appellants.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellants were tried in the district court of El Paso county, charged jointly with the robbery of Alec Thrift. Both were convicted, and punishment assessed against each at five years’ confinement in the penitentiary.

No exception was taken to the- court’s charge, and no special charges were requested. The case is submitted upon the contention of appellants that the evidence is insufficient to support the verdict, and alleged errors presented by three bills of exception.

The evidence reveals that Alec Thrift and Curly Wilmerling, on the night of the alleged robbery, were in Juarez, Mexico, across the river from El Paso. They were in the cafés, dance halls, and gambling houses, as were also both of the appellants. Some acquaintance existed between Thrift, Wilmerling, and the two appellants. Appellants were both drinking, and, according to the testimony of appellant Caskey, somewhat to excess. Wilmerling was gambling during the night, and Thrift, knowing he had a considerable sum' of money, remonstrated with him for carrying it about his person, and induced Wilmerling to turn over to him (Thrift) some $2,200. Thrift testified that when Wilmerling gave him the money he at first put it in his pocket but later went to the toilet and while there placed it in the top of his sock. The bartenders at one of the saloons testified that they heard some conversation in which the two appellants, Thrift and Wilmerling, .were engaged with reference to somebody having too much money, but claimed not to know who was talking or to whom the remarks were addressed.

About midnight Mrs. Grant, Saunders, Thrift, Wilmerling, and other parties returned together in a car to El Paso, where they all lived at the same apartment. The two appellants had preceded them in Cas-key’s car, bringing with them some other parties. After their friends got out of their car, Caskey and Ray went to the former’s room, secured two pistols, and from there went to the apartments where Mrs. Grant and the others resided, where they apparently waited for them to arrive. Upon reaching the apartment Mrs. Grant, Saunders, and Miss Edwards immediately proceeded up the stairway. There is some controversy as to whether the “holdup” was in progress at the time Mrs. Grant and Saunders went up the stairway, or whether appellants permitted them to pass before making the demonstration toward Thrift and Wilmerling. Mrs. Grant and Saunders appear not to have known a holdup was being staged, but Miss Edwards heard it, and reported to Mrs. Grant, who did not seem to believe it. The evidence shows that Ray presented a pistol and commanded Thrift and Wilmerling to hold up their hands. Thrift appears at first to have thought it a joke, and testified that while he was arguing with Ray, saying, “I won’t put my hands up, I don’t think you are sticking me up,” that Caskey remarked, “Get over here, you little s-of a b-, and put your hands up, I am about to do a killing,” he also having a pistol. Upon this being said by Caskey, Thrift and Wilmerling put their hands up and were directed by the two appellants to “line up” inside the entrance to the apartment; after they went into the hallway appellant Ray searched them while Caskey stood there with his gun. Ray got from Thrift some $7 or $8 in silver. He says that while .Ray was searching him he (Ray) put his hands on his watch, pin, and other articles of jewelry, and upon being told by Thrift that he did not want them Ray would pass them up. According to Thrift’s testimony Ray did not find the $2,200 which he had hidden in th,e top of bis sock.

Wilmerling was not present at the trial. Thrift does not undertake to .say how much money appellants got from Wilmerling, but immediately after the holdup from Wilmer-ling’s res gestae statements, introduced in evidence, it appears they secured from him some $35 or $40, among which was a $20 gold piece. Wilmerling also had some $300 or $400 which appellants either did not find or failed to take. Ray did not testify. Caskey’s testimony is to the effect that he was present in Juarez at the time the money was given by Wilmerling to Thrift and said to Thrift that somebody would bold him up, to which Thrift replied that “he dared anybody to try to hold him up,” whereupon he (Caskey) replied, “Why, I will hold you up before morning;” that on the way from Juarez to El Paso he and Ray agreed to go to the apartment and wait for Thrift and Wilmerling ahd as a joke pretend to rob them and get something like a dollar from each of them and buy drinks with it the next morning. He claims that Ray found the larger amounts of money upon both the parties but did not take it, as it was only a joke.

The evidence raised the issue as to whether the two appellants were really engaged in a robbery or whether they were engaged in it as a practical joke. The issue was submitted to the jury in a manner which was acceptable to appellants, and the finding of the jury upon their only defensive issue was against them. Under the evidence they might have acquitted without being subject to criticism. It is not explained by appellant Cas-key why they abandoned thejir original idea of taking only a dollar from each of the parties and instead took from one $7 or $8 and from the other some $35 or $40. The evidence of the state is sufficient to support the conviction, and the jury, having determined that issue in favor of the state, we would not feel authorized upon a question of fact to disturb their finding.

The question presented in bills of exception 1 and 2 may be considered together. The robbery was reported to the officers by the driver of the car who brought Mrs. Grant and her party to El Paso from Juarez. Appellants placed Burns, one of the officers, upon the witness stand, who testified that he arrested Caskey at the St. Regis Hotel on the night of the alleged robbery and Ray at another place where he lived. -Upon cross-examination it was elicited from Burns that when he arrived at the apartment where the robbery is alleged to have occurred he went upstairs to the second floor and then stated, “When I got there I received information as to some particular money that had been taken from one of those parties, among the money was a twenty-dollar gold piece.” It appears further that he saw Thrift and Wil-merling, but had no conversation with them directly. Burns further testified, over objection, that when he went to the St. Regis Hotel, after leaving the apartment, he made inquiry with reference to a $20 gold piece, and saw one at the hotel that night; that the clerk of the St. Regis Hotel had it. Objection was interposed to all this testimony, on the ground that it was hearsay and inadmissible, and not binding upon appellants. It does not appear from whom this witness received the information at the apartment that in the alleged robbery a $20 gold piece had been taken, but before Burns testified it was already in evidence-that immediately after the robbery Wilmerling had made the statement that among the money taken from him was a $20 gold piece. This statement was a part of the res gestae and would have been admissible even over appellants’ objection. If Burns had no direct conversation with Thrift and Wilmerling upon reaching the apartment, it may be assumed that he received this information from some of the parties to whom or in whose presence Wil-merling had made such statement. This was hearsay and should not have been admitted; but, granting this to be true, we have been unable to reach the conclusion, in view of it already being in evidence that a $20 gold piece was taken, that this statement on the part of the officer was such error as would call for a reversal. The clerk of the St. Regis Hotel, who was on duty at the time appellant Caskey came in that night, testified that Caskey requested change for a $20' gold piece, which he gave him. This appears to be the gold piece that Officer Burns testified to having seen at the St. Regis Hotel.

In the third bill of exception appellants complain at the following argument of the district attorney:

.. “The only way to stop these highway robberies is for the juries of this county to do their duty. Now if you do not convict these defendants for this holdup, don’t come to me and complain of highway robberies in El Paso county, don’t come to the court and complain of such highway robberies, don’t complain to us, but lay the blame where it would belong, at your own doors. Highway robberies should be stopped. The only way to stop them is for you jurors to do your duty.”

Objection is urged because it is claimed the language used was highly inflammatory, and because there was no evidence that there had been other holdups in El Paso county. We have been unable to discover anything objectionable in the argument. There is no intimation tha't there had been other robberies in El Paso; neither do we believe it subject to the criticism of being inflammatory. The district attorney, as he had a right to do, was calling attention of the jury to the fact that at last they were responsible for the enforcement of the law.

Finding no error in the record which would justify a reversal, the judgment is ordered affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In their motion for rehearing appellants stress what they claim to be error in the admission of hearsay testimony of state witness Burns. Mr. Burns was permitted to state that after the alleged robbery he went to the "scene thereof and gathered information that a $20 gold piece had been taken from one of the victims of said alleged robbery; also that later that night he found in the possession of the clerk of the hotel at which one of the appellants stayed, a $20 gold piece. Said clerk as a witness for the state testified that on the night in question he gave appellant Gas-key change for a $20 gold piece at said hotel. Appellants’ position is that, as the result of the admission of what he terms the hearsay testimony of Burns relative to obtaining information about the taking of a $20 gold piece, the state has placed in the record the damaging fact that a $20 gold piece was taken as part of the proceeds of the robbery. If this position was supported by the testimony, we would be inclined to hold appellants’ contention, that they were' hurt by the admission of said testimony, to be sound. Reverting to the statement of facts, however, we find in the testimony of Mr. Thrift, one of the parties who was alleged to have been robbed, the following statement, which seems in evidence without objection:

“I don’t know how much money Curly had on him that night after he gave me this $2,200. I don’t know how much he said they got from him, I think it totaled $35 or $40; I believe there was a $20 gold piece.”

In the testimony of Lon Saunders, a witness for the state, appears the following, which also seems to have been introduced without objection:

“I didn’t see anything that occurred in the hallway. I next saw Alec and Curly- when they came on upstairs. Curly didn’t say how much money they took from him; he pulled a roll out of his pocket and said, ‘They didn’t take this.’ He said they only got a few dollars. He said they got a $20 gold piece from him.”

Curly was the nickname of Mr. Wilmerling, who was the other party alleged to have been robbed.

From what we have just quoted it is plain that the testimony of Mr. Burns, so bitterly complained of by appellants in their motion for rehearing, did not inject into the case the proposition that Curly Wilmerling lost a $20 gold piece on the night in question in said robbery. This being true, we deem what was said by Mr. Justice HAWKINS in the original opinion, to the effect, that the admission of this testimony was not such error as would call for a reversal, to be correct. The fact that Mr. Burns found in the possession of the clerk of the St. Begis Hotel on that night a $20 gold piece, would not be hearsay or open to objection.

Appellants again insist that the argument of the district attorney was of such character as to call for a reversal. We regret we cannot agree to this contention. Said argument was no more than a general appeal to the jury to stop crime by rendering verdicts to uphold the law. This matter is sufficiently discussed in our original opinion.

The motion for rehearing will be overruled. 
      ©cwFor other oases see same topic and KBX-NUMBER in all Key-Numbered Digests and Indexes
     