
    BEVINS v. STATE.
    (No. 11569.)
    Court of Criminal Appeals of Texas.
    May 23, 1928.
    Rehearing Denied June 20, 1928.
    I.Arrest @=63(4), 71 — Criminal law @=395— Evidence held to authorize arrest and search without warrant of defendant leaving hotel when accused of theft, and admission of stolen money found on defendant was proper (Code Cr. Proc. 1925, art. 215).
    Evidence that prosecuting witness informed police officers that money had been stolen from him, and that defendant suspected was likely to escape, and that officers found defendant checking out of hotel ready to leave, authorized officers to arrest defendant and search him under Code Cr. Proc. 1925, art. 215, and evidence of money found on defendant’s person identified by prosecuting witness as money taken from him was properly admitted.
    2. Criminal law <©=>419, 420(1) — Testimony of officers that stolen money had been described to them before arresting defendant, was not objectionable as hearsay under evidence.
    Objection as hearsay to testimony of officers that, before arresting defendant charged with theft of money, alleged stolen money had been described to them, was, properly overruled, where witness did not state what description had been given, nor who .gave it.
    3. Criminal law @=l 166½ (12) — Court’s statement to jury that testimony showed report of felony, authorizing arrest and search of defendant, if error, was favorable to accused, where undisputed.
    Statement by court to jury that court thought testimony of officer showed report of felony had been made, and that officer was authorized to pursue and arrest defendant'before he escaped and search him, if error, was favorable to accused, where there was no dispute as to such facts, and hence no issue regarding such matter for submission to jury.
    4-. Criminal law <©=3656 (9) — Court’s statement that testimony showed report of felony, and authority to arrest and search defendant, held not harmful comment on evidence (Code Cr. Proc. 1925, art. 707).
    Statement by court to jury that court thought testimony of officer showed report of felony by prosecuting witness, and that officer was authorized to arrest defendant before he escaped, and then search' him, was not harmful comment on evidence, in violation of Code Cr. Proc. 1925, art. 707.
    5. Criminal law @=3656(9) — Court’s statement . that testimony showed report of felony and authority to arrest and search defendant’ was not injurious as relating to guilt of defendant.
    Court’s statement to jury that court thought testimony of officer showed report of felony, and that officer was authorized to arrest and search defendant before he escaped, did not relate to guilt of accused, but only to admissibility vel non of evidence, and was not injurious to defendant.
    6. Criminal law @=l 169(1) — Officer’s statement that defendant was searched for concealed weapons not found when arrested held not injurious.
    Statement by officer arresting defendant charged with theft that they searched defendant to see if he had any concealed weapons heM not prejudicial to defendant, where no testimony was given of fact that any such weapon was found.
    7. Arrest @=71 — Person legitimately arrested may be searched for concealed weapons.
    Officers legitimately arresting person for crime have right to see that he has no concealed weapons.
    8. Criminal law @=3451 (3) — In prosecution for theft, prosecuting witness if able, could testify that it was not customary for people to jump as defendant did when seen.
    In prosecution for theft, prosecuting witness, if able to say, from having seen people moving about at 3:30 a. m., that it was not customary for them to jump as defendant did when seen by witness, could make such statement.
    9. Criminal law <§=I 120(8) — Bill of excfeptions to witness’ statement as to defendant jumping when seen should show setting leading up to question.
    Objection to statement by prosecuting witness that it was not customary for people to jump as defendant did when seen by witness, to be pertinent, should state facts in bill showing surroundings leading up to question to be available as error.
    On Motion for Rehearing.
    10. Arrest <S=»63 (4) — Legality of arrest without warrant depends on information on which officer acts (Code Cr. Proc. 1925, art. 215).
    Legality of arrest by officer without warrant under Code Cr. Proc. 1925, art. 215, of defendant charged with theft, depends on information on which officer acted, and not on facts which might later develop.
    11. Larceny <S=»58, 68(1) — Identity of money or property alleged to be stolen is for jury and circumstances, and direct evidence must be considered on issue.
    Identity of money or other property, in prosecution for theft thereof, is usually question for jury, and circumstances must be looked to as well as direct evidence on issue.
    12. Larceny <⅜=>55, 58 — Guilt of accused and identity of stolen property need not be established by any one circumstance, but all circumstances must be considered.
    It is not necessary that any one circumstance establish guilt of accused or identity of property alleged to have been stolen, but question is whether all circumstances, together with direct evidence, establish guilt.
    13. Larceny ⅞⅞>58 — Evidence of identity of stolen $50 bill held to sustain conviction for theft.
    In prosecution for theft of money from hotel room, evidence that defendant, at 3:30 a. m., jumped into room when seen by prosecuting witness in hotel, that $50 bill was found in sock of defendant, who was about to leave hotel, which bill corresponded with bill lost .by prosecuting witness, in that it was issued by same bank, and was of same denomination, held to warrant jury in finding that money in defendant’s possession was that which had been taken from prosecuting witness, and hence to sustain conviction.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    George Bevins was convicted of theft, and he appeals.
    Affirmed.
    Moore & Wilson, of Amarillo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft; punishment, two years in the penitentiary. One Hanson testified that on the night of June 29th he went at 3:30 a. m. to his room on the third floor of the Ross Hotel in Amarillo, Tex., and, asi he started down the hall toward said room, he saw appellant jump into the second door from witness’ room. Witness retired. Next morning he found that some $80 had been stolen from his pocketbook. He at once reported the matter to the police, describing appellant and his movements of the night before, and telling the officers to hurry over, the man was likely to escape. They went at once. Appellant that morning had checked out at the hotel, and paid his bill, amounting to some $7. When the officers got to the hotel and went to appellant’s room, they said he had his grip ready to leave the room. They arrested him, searched, him, and found a $50 bill in his left sock between the foot and the sock. They also got $22.10 additional from his person. Mr. Hanson identified the $50 bill as being money taken from him on the night before, and said the other money resembled that which he lost. Appellant did not take the stand, and introduced no testimony.

There are six bills of exception. Two of same raise the admissibility of testimony of the officers as to what they found upon their search of appellant; the objection being that no search warrant was had by the officers. This question is not new or novel, and we are called upon to pass on it in substance in many eases. Qur C. C. P. art. 215, authorizes pursuit and arrest of persons suspected of felonies by officers to whom a satisfactory showing has been made by a credible person that a felony has been committed and the offender is about to escape, and that there is not time to procure a warrant for arrest. We are of opinion that such showing was made in thisi case, and, it being well settled that one so arrested may be legally searched and the facts thus ascertained given in evidence upon his trial, we hold it not error to admit the testimony. Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Moore v. State, 107 Tex. Cr. R. 24, 294 S. W. 552, and authorities cited; Hodge v. State, 107 Tex. Cr. R. 579, 107 Tex. Cr. R. 573; Reynolds v. State, 106 Tex. Cr. R. 391, 293 S. W. 178.

Objection on the ground that same was hearsay, to testimony of the officers that before they arrested appellant the alleged stolen money had been described to them, was properly overruled. The witness did not state what description had been given, nor who gave it. We find no element of hearsay in this. Harris v. State, 1 Tex. App. 74; Estes v. State, 23 Tex. App. 600, 5 S. W. 176.

Oomplaint is made that the trial court, in the presence of the jury, in reply to certain objections made by appellant, said, in substance, that he thought the testimony Of Officer De Witt stowed that a report,of a felony had been made to him by Hanson, and that he was authorized to pursue and arrest appellant, if he could, before he escaped, and, if he did, then incidentally he had the right to search him and fake him before a magistrate. In the record we find not the slightest dispute of the fact that Mr. Hanson did. report to Officer De Witt that a felony had been committed, nor of the fact that appellant had cheeked out at the hotel and was about to leave when the officers came immediately to same and arrested him, nor of the fact that Mr. Hanson was a credible person. We are of opinion that there was no fact issue regarding this matter demanding submission to the jury, and that the submitting of same to the jury was an error on the part of the court, but one favorable to the accused. In our opinion, the statement of the court was not a harmful comment, and but an announcement of what should have been his ruling upon the objections made to this matter, and hence , same was not in violation of article 707, 0. O. P., which forbids discussion or comment on the weight of evidence by the court in ruling on the admissibility of same. The matter to which the remark related in no way bore on the guilt of the accused, but only on the admissibility vel non of evidence, and would seem of no possible injury in any event. Rodriguez v. State, 23 Tex. App. 503, 5 S. W. 255; Stayton v. State, 32 Tex. Cr. R. 33, 22 S. W. 38; Smith v. State, 81 Tex. Cr. R. 368, 195 S. W. 595; Patterson v. State, 89 Tex. Cr. R. 402, 231 S. W. 763; Hollobaugh v. State, 96 Tex. Cr. R. 548, 258 S. W. 1064.

We fail to see any possibility of injury arising’ from the fact that one of the officers who arrested appellant said that they searched him to see if he had any concealed weapons. No testimony was given of the fact that any such weapdn was found. Officers legitimately arresting a person for a crime have the right to see -that he has no concealed weapons. Reynolds v. State, supra. The statement of the fact of such search was but a detail in relating what was done, and could have had no possible evil influence upon this case.

If the witness Hanson could say, from having seen people moving about at 3:30 a. m., that it was not customary for them to jump as did appellant when Hanson saw him, we can see no serious objection to his so stating. • To make pertinent an objection to such testimony, there should be some fact stated in the bill showing the surroundings or the setting or what led up to the question. It could, be readily conceived that, if said witness had been vigorously cross-examined regarding his claim, that the way and manner of appellant jumping into the door aroused his attention, and was one of the causes which led him to report the matter to the officers, the state might well go into the matter referred to. Appellant’s attorneys have on file an able brief citing many authorities, but none are believed by us to conflict with our views above expressed. Mr. Hanson positively identified the money taken from appellant as his, and the movements of appellant were not free from suspicion.

Believing the jury justified in their conclusion of guilt, and that no error appears-in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

-Conceding that Hanson told the officers to hurry to the hotel, that appellant was likely to escape, it is appellant’s contention that, if it was only Hanson’s conclusion as to the likelihood of an escape, unsupported by the real facts, it would give the officers no right to arrest without warrant under article 215, C. C. P. We think this position not sound. The legality of the officer’s act under the circumstances must depend upon the information upon which he acts, and not upon the facts-which might later develop. Suppose in the present case that from everything prosecuting witness told the officers they had reason to believe a felony had been committed, but entertained some doubt as to whether appellant intended to leave. When they went to the hotel, as it was their duty, to investigate the charge, they found that appellant had paid his hotel bill, packed his grip, and was in the act of departing. Such information obtained by them as to appellant’s contemplated departure was available to supplement the information already imparted by Hanson.

Appellant urges at length the proposition that the money found in his possession was not sufficiently identified as the money lost by Hanson, and points out that, while in his direct testimony said witness did identify the $50 bill, yet in his cross-examination it appears such identification is based only on the fact that he had a bill of that denomination which he knew was issued by a Fort Worth bank, and admitted that there were no distinguishing marks on this particular bill to which he could refer as differentia ting it from any other $50 bill issued by the same bank. The identity of money or other property is usually a question for the jury, and in many instances circumstances must be looked to as well as the direct evidence on the issue. All the circumstances must be taken together.. It is not necessary that any one circumstance-establish the guilt of accused or the identity of the property, but do all the circumstances,, together with the direct evidence, do so? Parish v. State, 85 Tex. Cr. R. 75, 209 S. W. 678. The circumstance of appellant being in the hotel corridor at 3:30 in the morning and his conduct when seen there-aroused the. suspicion of Hanson. Some hours later, upon discovering the loss of his-money, the action of appellant is recalled.. It is found that appellant had paid his hotel bill and is ready to leave; concealed in his sock under the bottom of his foot is a $50 bill, corresponding in all respects with the one lost by prosecuting witness; the amount of money found in appellant’s possession, together with the amount paid by him on his hotel bill, corresponded in amount very closely with that taken from Hanson. It is not impossible, of course, that another party in the hotel might be lawfully in possession of a $50 bill issued by the same bank as the one lost by Hanson, but it is, to say the least, unusual to find one of like kind secreted in the sock of the very party seen under suspicious circumstances near the room occupied by Hanson. The circumstance is not without cogency looking to the identity of the money as that taken from Hanson. Considering the entire record, we think this court would be unauthorized to hold that the jury was without warrant in finding that the money found' in appellant’s possession was that which had been taken from the prosecuting witness. For a discussion of the principle of law involved, see Lynne v. State, 53 Tex. Cr. R. 375, 111 S. W. 729; Hooton v. State, 53 Tex. Cr. R. 6, 108 S. W. 651; Fetters v. State (Tex. Cr. App.) 1 S.W.(2d) 312.

The motion for rehearing is overruled. 
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