
    TWITTY v. STATE.
    (No. 8909.)
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1925.
    Rehearing Denied Feb. 18, 1925.)
    1. Criminal law ⅞=>720(9) — Argument referring to defendant’s desertion of army to visit woman held not error.
    Where evidence showed that defendant, prosecuted for murder, served in the army and left it because of attractions of a negro woman, argument of district attorney that “this negro deserting the army at his pleasure to visit the wench of his choice,” and “to serve his country and his flag and then forget it to visit some negro wench,” held not objectionable.
    On Motion for Rehearing.
    2. Witnesses <§£^277 (2) — Where purpose of homicide was to procure car to leave state, defendant held properly questioned as to reasons for desiring to leave state.
    Where there was no evidence that defendant had personal animosity against deceased and defendant in his confession stated that his purpose in homicide was to obtain deceased’s car and go to another state, it was proper for state to question him in order to prove that his reason for leaving state was because of laws segregating whites from blacks.
    3. Criminal law <®=»730(I) — Tendering of defendant’s accomplice by state to defendant as witness held not error, where objection thereto sustained and jury instructed to disregard.
    Tender 'of defendant’s confederate by state to defendant as a witness was not error, where defendant’s objection thereto was sustained, ‘ jury instructed not to consider it, and written instruction not to consider such tender was also given.
    Appeal from Criminal District .Court, Dallas County; Grover C. Adams, Special Judge.
    Lavannie Twitty was convicted of murder, and he appeals.
    Affirmed.
    E. Crippin and George E. Hughes, both of Dallas, for appellant.
    Shelby S. Cox, Cr. Dist. Atty., of Dallas, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, ' for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of murder, and his punishment fixed at death.

From the statement of facts it clearly appears that appellant, who is a negro, with a negro woman, purposing to use the car of deceased to go from Texas to California or Arizona, got into a service ear in Dallas,' and when the driver took them to the place indicated appellant killed the driver by repeated blows with a hatchet, threw the body into a gravel pit, and with the said woman started on thqir journey to El -Paso. Finding the car so covered with blood as to be likely to attract attention and cause their arrest and detection of their crime, appellant and the woman abandoned the car. They appear to have attempted to continue their journey on foot, but stopped at a camp in Palo Pinto county where appellant was arrested. After his arrest and under formalities prescribed by law, appellant made a written confession which was introduced against him.

The trial court appointed attorneys to represent appellant, but as far as we can ascertain from the record he received at their hands every care and attention which could have been accorded him had he been represented by counsel of his own employment.

There is a bill of exceptions complaining of certain questions propounded by the district attorney to appellant while a witness in his own behalf. In view of the fact that it is unquestioned that appellant had no personal animosity against deceased and that the theory of the state was that the homicide had for its purpose and motive the securing of a car with which to leave Texas and go to Arizona or California, we see no impropriety in the questions propounded which had’ for their purpose the eliciting of the fact that appellant did not like to live in Texas for various reasons, but preferred to go back to Arizona. It is made to appear by the qualification of the trial' judge that to each of the questions mentioned, appellant returned a negative answer.

There is also an exception to the statement in argument by tbe district attorney in which he charged that—

“This negro (meaning the defendant) deserted the army at his pleasure to visit the 'wench of his choice.”

It being in evidence that appellant had left the army after enlisting, for the purpose of visiting and staying with a negro woman in Dallas, we perceive no departure from permissible argument in the above. Insistence is made in the able brief of appellant’s counsel that he was only absent without leave until his absence had reached a certain extent, after which he would be classed as a deserter, and that the word “deserted” in the statement of the prosecuting attorney imputed to him a crime of which he was not then guilty. We regret that we cannot agree with the fine distinction thus drawn to tl^e extent of holding the argument unsupported by the evidence and hurtful. In everyday parlance the man who had turned his back upon his post of duty and left it would be held to have deserted it even though in strict military or legal language this would not amount to a desertion. We are unable to believe that the jury viewed this argument as imputing to appellant a graver crime than the mere leaving of his post of duty, which fact is not controvertéd. Nor do we believe it objectionable argument to say of the accused: “To serve his country and his flag, and then forget it to visit some negro wench.” There was no question under the testimony but that appellant had served his country in the army and that he had left the army because of the attractions of a negro woman in Dallas.

It appears that the state tendered to the defense for use as a witness the woman who accompanied appellant at the time of the homicide. Appellant asked a special charge-that the jury be instructed that under the law the defense had no right to call said woman as a witness because she was an accomplice, and the state only had the right to call her as such witness. We do not find any statement in this bill of exceptions or elsewhere in the record from which we could infer that the woman was indicted. It may be possible that she was, but it does not so appear. Even if so indicted and the state had tendered her as a witness to the appellant, the most he could have done would have been to refuse to use her; but we do not believe he could base any claimed injury from such tender upon the proposition that he could not use her as a witness even though tendered to him by the state.

Our review of this record does not lead us to believe same to present any error which should call for a reversal of the case. The facts present a case where human life was taken without any excusing or justifying situation, and under such circumstances as impel us to uphold assessing the death penalty.

The judgment is aflirmed.

On Motion for Rehearing.

There are four bills of exception in the record, each of which was adverted to and discussed in the original opinion as much as we deemed sufficient. Appellant had pleaded guilty, and the state, under instructions of our statute, introduced evidence. For some reason appellant took the stand himself. He had made a confession in which he had stated that his purpose in the homicide was to obtain the car of deceased with which he and his-confederate might leave the state and go to another state. It would seem clear that the state might ask him questions tending to show any motive that the state thought it could put before the jury. Appellant seriously contends that the questions asked him by the state’s attorney, to the effect that he wanted to leave Texas because of its laws segregating the whites from the blacks, were such as would be calculated to inflame the minds of the jury against him. We cannot agree with this contention. The state asked appellant if he had not said to the woman who was present in the car at the time he committed the murder, that he wanted to leave Texas because its laws segregated the whites from the negroes and he did not like it. If this was the purpose, or entered into the purpose for which he committed the murder, it would be proper to prove it. It is not shown that the state’s attorney did not expect to obtain an affirmative answer to this question. ’

It is urged with much force that the tender to him of his confederate as a witness by the state was calculated to injure him. We are not able to bring ourselves in accord with this position. Granting that she was under indictment as a principal or an accomplice with him in this murder, it would then follow that he could not introduce her as a witness in his behalf over objection. Our interpretation of such tender of the woman by the state to appellant, under these circumstances, would be that the state was thus indicating its waiver of its right to object to her testimony if appellant desired to use her. The record discloses that when the woman was tendered to appellant, he objected to the action of the state’s attorney, and the court sustained his objection and instructed Ihe jury not to consider the statement of the district attorney tendering the witness. It is shown that appellant asked the court to give the jury a written instruction not to consider said tender, which was also given.

We do not believe any error is shown, and the motion for rehearing will be overruled. 
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