
    SILVER v. STATE.
    (No. 11108.)
    Court of Criminal Appeals of Texas.
    Jan. 11, 1928.
    Rehearing Denied June 28, 1928.
    1. Searches and seizures <§=33(1) — Automobile may be searched without warrant by officer having knowledge or information of facts constituting probable oause.
    The search of an automobile on a public highway may be made without a warrant, where the searching officer has knowledge or information of facts constituting probable cause.
    2. Searches and seizures <§=33(1) — ,“Probable cause,” authorizing search of automobile without warrant, is reasonable ground of suspicion, supported by circumstances warranting cautious man in belief that accused is guilty.
    “Probable cause,” authorizing search of automobile on public highway without a warrant, is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in belief that accused is guilty of offense charged.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Probable Cause.]
    3. Searches and seizures <§=33(1)— Radio information of crime and description of perpetrators held to constitute probable cause for search of their automobile without warrant.
    Radio information as to holdup and murder, and description of perpetrators, which tallied with men whom officer saw and talked to, held sufficient to constitute probable cause, authorizing Search of their automobile without a warrant.
    4. Criminal law <§=>518(2) — Defendant’s statements to officers immediately after search of his automobile held admissible as against contention that statute relating to confessions while under arrest was not complied with.
    In trial for robbery with firearms, testimony as to defendant’s statements to arresting officers, immediately after they searched his automobile and found stolen money, that he, and no one else, would drive his car back to town, held admissible as against contention that statutory requirements as to confessions while under arrest were not complied with.
    5. 'Criminal law <§=3351 (4)— Defendant’s resistance of arrest may be' proved.
    ■ Where a party is arrested, or sought to be arrested, for an offense, and resists arrest, it is a legitimate fact to be proved.
    6. Criminal law <§=3518(2)— Defendant’s statements while under arrest held inadmissible as confession so far as showing his ownership of automobile in which stolen property was found (Code Cr. Proc. 1925, art. 727).
    In trial for robbery with firearms, defendant’s statements to officers, immediately after search of automobile wherein stolen money was found, were inculpatory so far as showing that he .owned automobile, .and hence inadmissible as confession, if he was under arrest, in absence of surroundings bringing them within exception to inhibitions of Code Or. Proc. 1925, art. 727.
    7. Criminal law <®=3'l 169(3)— Evidence of defendant’s statement, when arrested, as to his ownership of automobile, was harmless, where his possession thereof was shown by voluntary confession.
    Admission of testimony as to defendant’s statement to officers at time of arrest relative to his ownership of automobile in which stolen property was found was harmless, where his possession thereof was shown beyond dispute by his voluntary confession.-
    8. Robbery <§=323(3) — Admission of testimony, in trial for robbery with firearms, as to finding three pistols im defendant’s automobile at time of arrest, held not error.
    In’trial for robbery with firearms, court did1 not err in permitting state to prove by police officer that he and other officers found three pistols in defendant’s automobile at time of arrest, in view of evidence that two of such pistols, which defendant confessed belonged to him and his companion, who fired fatal shot, were of same caliber as that taken from victim's body, and that pistol belonging to defendant’s companion had been recently fired.
    9\, Criminal law <§=3537 — Defendant’s confession, accompanied by statements of incriminatory facts, foundi true, as by finding stolen property or instrument used in committing offense, is admissible, whether he was in custody and warned or not.
    Defendant’s oral or written confession, in connection with which he makes statements of incriminatory facts or circumstances, which are found to be true, as by finding secreted or stolen property or instrument with which he states that offense was committed, is admissible, whether he was in custody and warned or not.
    10. Robbery <§=>23(l) — Sheriff’s testimony that defendant directed him to where money bag taken from victim' of robbery was concealed held admissible.
    In trial for robbery with firearms, admission of sheriff’s testimony that defendant, after being arrested and placed in jail, was placed in automobile by witness and district attorney, and directed them to point where money bag, later identified as that taken from victim, was concealed, held not error.
    11. Criminal law <⅜»517(6) — Confession to district attorney held admissible, though other officials were present and heard it.
    That other officials were present and heard defendant’s confession, made to district attorney, did not render it inadmissible.
    12. Criminal law <jte>516 — Confession held not inadmissible because accomplice’s identical statements were so intermingled with defendant’s as to necessitate placing both before jury.
    Confession, dictated jointly, and signed in each other’s presence by defendant and one with whom he acted in committing offense, held not inadmissible because accomplice’s statements were so intermingled with those of defendant as to necessitate placing them before jury in connection with defendant’s statements, especially as they were identical.
    13. Criminal law <&=»1044 — Bill to admission of testimony heldi not to show error, in absence of motion to exclude, and instruct .jury to disregard.
    Bill of exception to admission of testimony of deceased’s mother as to his age and height, on ground that questions anticipated her evidence, and that there was no issue as to' parties’ relative size and strength, presents no error, in absence of motion to exclude and- instruct jury not to consider such testimony, much of which was given without objection, or statement of what evidence anticipated would be.
    14. Criminal law <3=»692 —Court need not sustain objection to evidence not yet heard, until it Is stated to court.
    Trial court is not called on to sustain objection to evidence not yet heard, until such evidence is stated to court so that its relevancy and materiality may be determined.
    15. Criminal law <&=»726 — Exception to argument, invited by argument of appellant’s counsel, manifests no error.
    Bill of exception to argument of state’s attorney, invited by argument of appellant’s counsel, manifests no error.
    16. Criminal law <⅞⅜=>9'25½(I) — New trial for jury’s discussion of defendant’s failure to testify held not warranted, where such failure was merely mentioned, and not taken as circumstance against him.
    Defendant was not entitled to new trial for misconduct of jury in discussing his failure to testify, where evidence showed mere mention thereof, which was promptly reproved, and that jury did not take it as circumstance against defendant.
    17. Criminal law <3=o956(l6) — Evidence on motion for new trial held to warrant conclusion that juror was fair and impartial.
    Where testimony on motion for new trial as to juror’s statement that he would break defendant’s neck if he got on jury was conflicting, and impeaching witnesses testified that reputation for truth and veracity of such juror, who expressly denied making statement, was good, trial court was warranted in concluding that juror was fair and impartial.
    On Motion for Rehearing.
    18. Criminal law <3=d 111 (3) — Trial judge’s opinion that argument was in response to remarks of appellant’s attorney has great weight on appeal.
    Trial judge’s opinion that argument objected to was in response to remarks of appellant’s attorney has great weight with reviewing court.
    19. Criminal law <⅜=>713 — ^Particular facts and surroundings should be considered in determining effect of argument.
    The facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of.
    20. Criminal law <3=>'l 171(1) — Appellate court will hesitate to attribute assessment of merited death penalty for deliberate murder to improper argument of counsel.
    Where a deliberate, useless, planned murder is committed in perpetration of robbery, and death penalty is merited under facts, the appellate court will hesitate long before attributing assessment of such punishment to improper argument of state’s attorney.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    J. R. Silver was convicted of robbery with firearms, and he appeals.
    Affirmed.
    W. R. Parker, Clarence Parker, and Virgil R. Parker, all of Port Worth, for appellant.
    Jesse E. Martin, Crim. Dist. Atty., and Arthur Dee Moore, Asst. Crim. Dist. Atty., both of Port Worth, and A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery with firearms; the punishment death.

The fact that appellant and his companion, Stone, deliberately planned to rob Roscoe Wilson, the deceased, and that, in carrying into effect their unlawful design, Stone murdered and robbed him of a large sum of money, while appellant sat by in an automobile, is not controverted. After blotting out the life of their innocent victim, appellant and his companion fled with their ill-gotten gains to Oklahoma, where they were arrested. At the time of their arrest they were possessed of the spoils of the robbery. Each confessed. Not a mitigating circumstance appears in the record. Let this statement of the transaction suffice. A detailed statement of the testimony can serve no useful purpose.

In bill of exception No. 3, complaint is made of the receipt of the testimony of C. W. Bolán, police officer of Sulphur, Okl., to the effect that, upon the search of the automobile used by appellant, it was found to contain three pistols, a box of cartridges, and two suitcases, each containing $1,800 in currency.

No warrant authorizing the search of the car had been issued, and, in opposing the legality of the receipt of the testimony, appellant relied on article 1, § 9, of the Bill of Rights, forbidding unreasonable searches and seizures without probable cause, supported by oath or affirmation, and on articles 4a and 727a, C. C. P., which penalize an illegal search, and forbid the receipt of testimony touching such search.

The search was made in the state of Oklahoma by officers of said state. However, in disposing of appellant’s contention, it is not necessary to decide whether the inhibitions of the Constitution and statutes relating to the subject of search and seizure are confined to the action of officials of our state.

The search of an automobile upon the public highway may be made without a search warrant where the seizing officer has knowledge or information of facts constituting “probable cause.” Carroll v. United States 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762.

“Probable cause” has been defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Landa v. Obert, 45 Tex. 539.

The recitals of the bill disclose that the officer had sufficient information before the search to constitute probable cause. Said officer testified, in substance, that he had heard over the radio that there had been a holdup and murder in Port Worth; that he had also gotten over the radio a slight description of the men who committed the crime; that he saw appellant and a man who gave his name as Wilson in Sulphur, Okl., in a Chrysler coupg; and that, in a conversation they had with him in regard to roads, appellant told him that he was from Dallas, Tex., and that they were going to Shawnee, Okl.; that the description he had received over the radio “tallied up with these two men I saw there, this defendant and Wilson.”

The record shows that, while the officers were near the ear driven by appellant, appellant and his companion came up; that appellant started to get in the car, and that one of the officers told appellant he wanted to look him over; that the officers were holding guns on appellant and his companion ; that they demanded that appellant open the back end of .the car; that after appellant unlocked the back end of the car, the officers discovered satchels containing the stolen money, and that they thereupon told appellant that they would take him to town for further investigation; that appellant said he would drive his car back to town, and that one of the officers told appellant that he (appellant) could ride in his (the officer’s) car; that appellant replied, “Damned if anybody drove his car back”; that the officer said, “No, you are going to ride in this car, and I don’t want to have any argument out of you about it.” The record further shows that in his voluntary confession appellant admitted that he committed the robbery, acknowledged the possession of the automobile he was driving when arrested, and acknowledged possession of the fruits of the crime and the pistols used in its commission. Further mo re, appellant was driving the car in question when first seen in Sulphur, Okl., by Officer Bolán, and, when arrested, had the key to the back end of the car in which the suit cases and money were concealed.

Appellant’s contention, as shown by bill of exception No. 4, that the statements made by him to the officers immediately after the search of the car were inadmissible, for the reason that he was under arrest and the statutory requirements relating to confessions had not been complied with, cannot be sustained. Where a party is arrested, or sought to be arrested, for an offense, and resists the arrest, it is a legitimate fact to be proved. Mitchell v. State, 52 Tex. Cr. R. 37, 106 S. W. 124; Moreno v. State, 71 Tex. Cr. R. 460, 160 S. W. 361; Walker v. State, 74 Tex. Cr. R. 645, 169 S. W. 1156; Klein v. State, 102 Tex. Cr. R. 256, 277 S. W. 1074; Chester v. State (No. 11157) 108 Tex. Cr. R. 150, 300 S. W. 57, opinion delivered November 23, 1927.

Appellant further contends that the statements attributed to him by the officers constituted a confession of ownership of the automobile in which the stolen property was found. Such statements, in so far as they showed that appellant owned the car in question, were inculpatory, and constituted a confession in contemplation of article 727, C. C. P., if appellant was undpr arrest. Willoughby v. State, 87 Tex. Cr. R. 40, 219 S. W. 468. Under such conditions, the statements would have been inadmissible, in the absence of surroundings bringing them within the operation of the recognized exception to the inhibitions of article 727, C. C. P. In view of the fact, however, that appellant’s possession of the car in question was shown beyond dispute by his voluntary confession, the statement made, by him at the time of his arrest relative to ownership of the car was harmless. Pettiett v. State, 100 Tex. Cr. R. 255, 272 S. W. 473; Scharff et al. v. State, 99 Tex. Cr. R. 605, 271 S. W. 83; Villegas v. State (Tex. Cr. App.) 41 S. W. 610.

We perceive no error in the action of the court in permitting the state to prove by Officer Williams that, at the time of the arrest of appellant, he and other officers found three pistols in appellant’s car. In qualifying hill of exception No. 5, which preserves the complaint in question, the trial court states that the testimony showed a .38 caliber bullet was taken from the body of deceased, Roseoe Wilson; that appellant’s confession showed that the guns found in the car belonged to appellant and his companion; that two of the pistols, one a .38 caliber and the other a .32 caliber, belonged to appellant, and that a .38 caliber pistol belonged to appellant’s companion; that the pistol belonging to appellant’s companion had been recently fired.

After appellant had been arrestéd and placed in jail, he was placed in an automobile by the sheriff and district attorney, and directed said officials to a point in Dallas county where a money bag was concealed, which was later identified by witnesses as looking like the money bag taken from Roseoe Wilson at the time he was killed and robbed. As shown by bill of exception No. 6, appellant objected to the. testimony of the'sheriff touching this transaction.

Whether accused be in custody or not, or be warned or not, his oral or written confession is admissible, if in connection therewith he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. Branch’s Annotated Penal Code, § 63; Wade v. State, 93 Tex. Cr. R. 364, 248 S. W. 382; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707. The court did not err in admitting the testimony.

As shown by bill of exception No. 7, appellant lodged several objections to the introduction in evidence of his written confession. The chief objections were that it was shown on the face of the confession that same was made to Jesse E. Martin, district attorney, whereas the proof showed that it was made to Martin and two other officials, and, further, that the confession was inadmissible, because so intermingled with the confession of Stone that it was necessary to introduce Stone’s confession against appellant.

There is no vice in the fact that others were present and heard the confession at the time it was made to the district attorney. The proof and confession both show that the statements were in fact made to Jesse E. Martin, district attorney. Neither was the confession inadmissible because the statements of Stone were so intermingled with those of appellant that it was necessary to place such statements before the jury in connection with appellant’s statements. It was uncontradicted that appellant and Stone acted together in the commission of the offense. They were both present w.hen the confession was made, dictated it jointly, and signed it in the presence of each other. Moreover, the statements were identical. We think this constituted a proper predicate for the admission of the written statement. Blake v. State, 81 Tex. Cr. R. 87, 193 S. W. 1064.

Mrs. Wilson, mother of deceased, was a witness for the state. After she had stated her name, age, place of residence, and the age of deceased and his height, appellant objected both to this testimony and to what she might further say, assigning as his reason therefor that they anticipated what her evidence was, and objected because there was no issue in the case as to the relative size and strength of the' parties, and such testimony might be prejudicial to the rights of defendant. Such a bill brings before us no error. Certainly, after much of the testimony of the witness had been given without objection, appellant’s recourse as to same would have been to move the court to exclude it and instruct the jury not to consider such testimony. This he did not do. Nor are we aware of any rule of procedure which calls upon the trial court to sustain an objection to evidence not yet heard, until and unless same is stafed to the court so that its relevance and materiality may be determined. We fail to find where the court below was called upon to exclude either that testimony heard before objection or that heard after the overruling of the anticipatory objection which did not apprise the court as to what was or would be the testimony so objected to. Appellant did not ask that the jury be retired so that the court might hear the evidence and thus determine its materiality. He did not state in substance or detail what the evidence would be. We find no error in the bill, but are further of the opinion that the evidence as same appears set out in the bill would not warrant a reversal, even if improperly admitted.

Appellant brings forward several bills of' exception in which he complains of the argument of the district attorney. As we understand the court’s qualification of the bills under consideration, the argument complained of was invited by the argument of appellant’s counsel. In this condition the bills fail to manifest error.

In his motion for a new trial, appellant alleged misconduct of the jury; his complaint being that the jury, before arriving at a verdict, discussed his failure to testify. A review of the evidence heard on the motion convinces us that the trial court was warranted in concluding that no discussion of appellant’s failure ito testify, further than its mention, which was promptly reproved, was presented, and that the jury did not take his failure to testify as a circumstance against him. See Lamb v. State, 98 Tex. Cr. R. 358, 265 S. W. 1035.

Appellant' also insists that the court should have granted his motion for a new trial because one of the jurors was prejudiced against him. It is stated in his motion, in substance, that appellant learned after the trial that the juror in question had stated that if he got on the jury he would break appellant’s neck. The court heard evidence on the motion. The testimony as to the statements attributed to the juror was conflicting. The juror expressly denied that he made the statements, and it was shown by the impeaching witnesses that the juror’s reputation for truth and veracity was good. This being the condition of the record, the trial court was warranted in concluding that the juror was fair and impartial. In Branch’s Annotated Penal Code, § 565, p. 288, the rule is stated as follows:

“When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant’s guilt, or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the appellate court, unless clearly wrong, if the evidence bearing thereon was conflicting, and was suflicient, if believed, to justify the action of the tral judge.” See, also, Meadors v. State, 101 Tex. Cr. R. 336, 275 S. W. 829; Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588.

In view of the fact that the jury has determined that appellant must pay with his life for the crime he has committed, ,we have given the most careful consideration to every question presented by this appeal. Our conclusion is that appellant was accorded a fair and impartial trial. The uneontroverted evidence discloses a most shocking and wanton crime. That the jury demanded a forfeiture of appellant’s life is not surprising. No mitigating facts or circumstances are present.

The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant re-urges many of the questions discussed in our original opinion. We believe all of them to have been correctly disposed of. To again write at length would be largely a repetition, and the near approach of the end of the present term of court prevents any extended further consideration of the many points stressed. Appellant is particularly insistent that we erred in disposing of his complaint at the argument of the district attorney on the count’s qualification that the remarks complained of were invited by the argument of appellant’s counsel. It is appellant’s position -that the statements of his counsel set out in the qualification, and relied upon by the state as inviting the objectionable argument, show that 'the district attorney went far beyond the extended invi-tation. It must be apparent that it is most difficult for this count to accurately appraise a contention thus presented. The opinion of the learned presiding judge that the argument objected to was in response to remarks of appellant’s attorney must of necessity have great weight with the reviewing court under the circumstances.

Another thing that must be borne in mind is that the facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial, and not so regarded under other circumstances. This is illustrated in Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695; Coates v. State, 98 Tex. Cr. R. 314, 265 S. W. 891; Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548. Where deliberate, useless, planned murder is committed in the perpetration of robbery, and the death penalty merited under the facts, we would hesitate long before attributing the assessment of such punishment to an argument. Under all the circumstances of the present case in connection with the qualification of the court on fhe bill in question, we think the motion for rehearing should be overruled, and it is so ordered. 
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