
    GLOVER v. STATE.
    (No. 10569.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    Rehearing Denied Nov. 2, 1927.
    1. 'Criminal law <&wkey;>829 (I) — Refusal of special charges embraced in main charge is not error.
    Refusal of special charges requested is not error, where special charges are embraced in main charge.
    2. Robhery <&wkey;23(3) — 'Testimony of officer as to defendant’s arrest and property found in his possession held admissible, in robbery prosecution.
    In prosecution for robbery, receiving testimony of officer as to arrest of defendant and property found in his possession held not error.
    3. Criminal law <&wkey;366(6) — Injured person’s •statement, several minutes after assault, that defendant had held him up and robbed him, held res gestee.
    In robbery prosecution, admitting statement that a few moments after assault person assaulted declared that defendant had held him up with a gun and robbed him held not error; statement being res gestee.
    4. Criminal law \7W/z(^) — In prosecution for robbery allegedly committed after defendant had lost in crap game, cross-examination of defendant as to whether he would have complained if he had won held not prejudicial.
    In prosecution for robbery, in which defendant claimed injured party had previously obtained money from him by unfair means in crap game, cross-examination of defendant as to whether he would have made any complaint if he had won, and counsel’s remark that he desired testimony to controvert that of defendant to the effect that he had lost his money, held not prejudicial.
    5. Criminal law <&wkey;1169(1) — In prosecution for robbery allegedly committed by loser against winner of crap game, testimony of officer that he had never arrested winner for gambling held not prejudicial.
    In prosecution for robbery allegedly committed by loser against person who won at crap game, testimony of officer that he had never arrested winner for gambling, though possibly immaterial, held not prejudicial.
    6. Criminal law <&wkey;*720(/2 — Counsel’s appeal in argument not to let this negro free; that he ought to be in penitentiary, held not error.
    In prosecution for robbery, statement of counsel for state in argument, “Don’t let this negro run around on the street; he ought to be in the penitentiary under the facts in this case,” held not ground for reversal.
    Appeal from District Court, Brazos County; W. C. Davis, Judge.
    Marshall Glover was convicted of robbery, and he appeals.
    Affirmed.
    F. L, Henderson, of Bryan, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. ¡M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for robbery ; punishment fixed at confinement in the penitentiary for a period of five years.

According to 'the testimony of Manuel Harris, the alleged injured party, he and the appellant engaged in a gambling game called “craps,” played with two dice. The game resulted in favor of Harris, who won some $40 or more from the appellant. After leaving the room, the appellant returned, and by threats of violence forced Harris to return the money. • Harris testified that the assault was made with a pistol, while the appellant .and his father testified that it was made with a stick of stove wood. Upon the question of (he assault and the threat to take the money there was no conflict save as to the weapon used.

Glover claimed that the dice used by Harris were fraudulent, and also that he used three dice instead of two, secreting one of them in his coat sleeve. This was denied by Harris.

The issues were properly submitted to the jury. Two special charges were requested, but each of them was embraced in the main charge, which submitted to the jury in appropriate language the right of the appellant to take his money if it was taken from him by fraud, false pretext, or unfair means.

The bills of exceptions have all been examined. There was no error in receiving the testimony of the officer touching the arrest of the appellant and the property found in his possession.

The complaint in bill No. 2 of the receipt of testimony showing that a few moments after the assault Harris declared that the appellant had held him up with a gun and robbed him does not show error in that it fails to show that the testimony was not res gestee. The court, in its qualification, indicates that it was res gestee.

Bill No. 3 fails to show error, and calls for nó discussion.

In bill No. 4 it appears that, on cross-examination of the appellant, he was asked in substance if it was not true that, if he had won Harris’ money, he would have made no complaint. Objection was made, and, in a colloquy between the county attorney and the court, counsel said, in substance, that he desired the testimony to controvert that of the appellant to the effect that he had lost his money. . Neither the question nor the remarks impresses us as being of great weight. It seems obvious that, since the complaint of the appellant, as developed by his testimony, was that his money had been taken by Harris by trick or fraud, arid that he (the appellant) had used none but fair means, he would not have.had any ground for complaint if Harris, and not the appellant, had been the loser. The whole matter seems argumentative, but not harmful.

Bill No. 5, to the effect that the 'officer had never arrested Harris for gambling, seems immaterial but not reversible. It was undisputed that Harris was a professional gambler, and there was much testimony that his gambling transactions were not straight. The fact that the particular officer had never arrested him was apparently not error. Moreover, so far as the bill shows, it may have been a proper cross-examination of the witness Conlee, who was a constable and a state’s witness.

Bills Nos. 6 and 7 refer to special requested charges to which we have already adverted in this opinion.

Bills Nos. 8 and 9 refer to requests for instructions to disregard the argument. As qualified, bill No. 8 fails to show that any improper argument was made. The complaint in bill No. 9 is that counsel for the state, in appealing to the jury, said:

“Don’t let this negro run around on the street; he ought to be in the penitentiary under the facts in this case.”

Bill No. 10 complains of substantially the same language. The same is true with ref-; erence to bill No. 11. The bills all fail to show error.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant again insists that the incident complained of in bill of exception No. 4 was prejudicial error, demanding reversal. As stated in our original opinion, the matter does not appear to us to have been of serious import. The language of the county attorney which is complained of was a statement of his contention. We think the jury could not have misunderstood or have been prejudiced 'thereby. Investigation of the other questions does not lead us to believe error was committed in our former af-firmance of the judgment.

Appellant’s motion for rehearing is overruled. 
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