
    BENTON et al. v. STATE.
    (No. 11115.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    1. Criminal law <®=»591 — Negroes, charged with killing white man, held not entitled to continuance because of race hatred.
    Negro defendants in prosecution for murder held not entitled to continuance on ground that publicity had been given killing' through newspapers, and fact that defendants, being negroes, were charged with killing white man, had caused race hatred against them.
    2. Criminal law <@=»I34(2) — Application sworn to only by defendants cannot be basis for receiving evidence on issue of change of venue (Code Cr. Proc. 1925, art 562).
    Application sworn to only by defendants cannot be basis for receiving evidence on issue of change of venue, under Code Or. Proc. 1925, art. 562.
    3. Criminal law <&wkey;636(3) — Defendants need not be present when court makes order directing summoning of special venire.
    Special venire cannot be attacked by defendants in prosecution for murder, on ground that they were not present when court made order directing summoning of such special ve-nire.
    4. Jury &wkey;>82(3) — Court is not justified in setting aside special venire because names were drawn from hat, instead of box (Code Cr. Proc. 1925, art. 592).
    Court is not justified in setting aside special venire in prosecution for murder, because names of jurors were written on slips of paper and placed in hat, and drawn therefrom, instead of being drawn from box, as provided in Code Or. Proc. 1925, art. 592.
    5. Jury. <§=^82(3)— Special venire will not fee quashed, because some veniremen were not summoned by sheriff or deputy, where no complaint was made that any were absent.
    Special venire in prosecution for murder will not be quashed, on ground that some of veniremen were not summoned by sheriff or deputy sheriff, where evidence showed that constable, acting under direction of sheriff, summoned them, and there was no complaint that any were absent; it being assumed that they were present, in which case defendant was not prejudiced.
    6. Homicide <®=U63(2) — In prosecution of ne-groes for killing white employer, exclusion of pages from justice’s docket, showing de* ceased had charged other negroes with vagrancy, held proper.
    In prosecution of negroes for killing white employer, exclusion of certain pages from docket of justice of peace showing that deceased had filed complaints charging other negroes with vagrancy, held proper; such evidence being entirely irrelevant to any issue.
    7. Homicide <&wkey;31 i — -Evidence held insufficient to justify charge that, if deceased practiced peonage and negro defendants attempted to gain liberty, circumstance should be considered in mitigation of punishment.
    In prosecution of negroes for killing white employer, refusal of special charge that, if deceased had practiced peonage against defendants and they attempted to gain liberty from such system, such circumstance should be considered in mitigation of punishment, held proper, in view of evidence which did not raise issue whether deceased practiced peonage.
    8. Criminal law <&wkey;763, 764(8) — -Requested charge that, if deceased practiced peonage and defendants attempted to gain liberty, such circumstance should be considered in mitigation of punishment, held on weight of evidence.
    In prosecution of negroes for killing white employer, requested charge that, if deceased had practiced peonage against defendants and they attempted to gain their liberty from suck system, such circumstance should be considered in mitigation of punishment, held to be on weight of evidence.
    9. Witnesses <&wkey;>52(l, 2) — Woman with whom defendant lived im adultery may testify against him in murder trial.
    In prosecution for murder, testimony of woman with whom defendant was living in adultery cannot be excluded on ground that she was his common-law wife.
    10. Criminal law <§»673(4) — Admission of one defendant’s confession, with instruction not to consider it against the other defendant, held not error.
    In prosecution of two defendants for murder, admission of confession of one held not • error, where jury were instructed that it should not be considered against the other, and where, according to confession, acts of both defendants were so interwoven that attempt to eliminate the other defendant from the confession would have rendered it incomplete.
    11. Criminal law <&wkey;720(9)— Argument that circumstances showed defendants lied in saying one withdrew before murder was consum- . mated held justified by evidence.
    In prosecution of two defendants for murder, argument that circumstances showed that defendants were lying in claiming that one withdrew before murder was consummated 'held justified by evidence showing tracks of both defendants to point where body of deceased was found.
    Appeal from District Court, Crosby County; Homer B. Pharr, Judge.
    Robert Dee Benton (alias Robert Stanley) and Son Gipson were convicted of murder, and they appeal.
    Affirmed.
    B. A. Watson and W. P. Jones, both of Crosbyton, and N. C. Outlaw, of Ralls, for ap- . pellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellants were jointly indicted for the murder of B. E. Morgan. A joint trial resulted in the death penalty for Benton, and 50 years in the penitentiary for Gipson.

Morgan had taken Benton and Gipson, with other negroes, from Navarro and other counties to his farm in Crosby county to pick cotton. Benton and Gipson, with some negro women, had left the farm, owing Morgan, who followed them and returned them to the farm, where they continued work.' If any unpleasantness occurred between the time they were brought back and the day of the killing, the record does not reveal it. The facts of the killing are revolting. On that day Morgan went to the field where the two appellants and Billie Tucker were at work and inquired how they were getting along. Everything appeared pleasant. After talking to them some time about the work, he called Benton to one side and informed him that he (Morgan) had been told that Benton had a pistol, and wanted Benton to give it up. Benton denied having it. He says Morgan took' hpld of him, as though to search him, when he jerked loose, drew the pistol, and presented it at Morgan. However that may be, when the attention of Gipson and Billie was attracted, Benton had the pistol drawn on Morgan. The two then came to where Billie and Gipson were, and Morgan told Benton, if he was afraid to give the pistol to him (Morgan), to unload it and give it to either Gipson or Billie. This Benton refused to do, but directed Morgan to march out of the field; Benton following with the pistol and accompanied by Gipson. Morgan tried to get Benton to let Billie go with them, but Bentoh ordered her to remain in the field. Morgan was made to go out of the field, across a pasture, and into some rough ground or canyons. When he refused to go farther, Benton shot him twice, and he and Gipson threw him into a canyon. They then went to the body and Benton took $35 from him. Thinking he was dead, the two ran away, but, hearing a' noise, looked back and discovered Morgan had gotten up and was staggering around. They went back to him, when he begged them not to shoot him again. They took him some 500 yards, to where a ravine came into the canyon, sometimes carrying him, and sometimes he would be.walking between them. After reaching the ravine, they sat him down with his back against the bank, and Benton shot him again. Benton fled, and was arrested in Fort Worth a day or two later. Gipson returned to the field, running, and reported to Lillie that Benton had killed Morgan, and expressed fear that they had been seen from a house, and that he would be recognized by a red sweater he was wearing. He hid his shoes under the house, and the sweater disappeared.

Appellant sought a continuance, averring in the application therefor that two brothers of deceased were leading citizens of the county and had many friends; that much publicity had been given the killing through the newspapers, it being averred that 'on account of appellant's being negroes, and charged with killing a white man, the publicity had eáused much race- hatred against appellants. Another averment was that fear of mob violence had prompted the officers to take unusual precautions against it. It was further averred that there was no reasonable expectation that the conditions claimed to exist would be different during the “present” term of court. . We are not aware of any law authorizing a continuance upon the grounds alleged in the application. If it had been for a change of venue, supported by compurgators, as the law requires (article 562, O. G. P.), it would have been the basis for. receiving evidence upon that issue, but the application is sworn to only by appellants. The state controverted the application, and especially the averments as to race prejudice and “mob spirit,” and supported its reply by affidavits. In allowing the bill, the court appends the explanation that the newspaper articles referred to were shown to have been published in Dickens county, and not in Crosby county, the place of the trial, and that no proof was offered to show the existence of race prejudice, or anything that would prevent appellants from securing a fair and impartial trial. Aside from the fact that the application was insufficient on its face either for a continuance or for a change of venue, the court’s explanation shows beyond question that no error was committed in denying appellants’ request for delay.

Appellants attacked the special venire on two grounds: First, because they were not present when the court made the order directing the summoning of the special venire. This point was decided against appellants’ contention in the early days of this court. Pocket v. State, 5 Tex. App. 552; Cordova v. State, 6 Tex. App. 207. If there has ever been an expression to the contrary, it has not been called to our attention. Oliver v. State, 70 Tex. Cr. R. 140, 159 S. W. 235; Gaines v. State (Tex. Cr. App.) 53 S. W. 623; Walker v. State, 94 Tex. Cr. R. 414, 251 S. W. 235. The second ground of attack upon the venire was predicated upon an averment that the names of the jurors were written on slips of paper, which were placed in a “hat” and drawn therefrom, instead of being placed in and drawn, from a “box,” as provided in article 592, O. C. P. (1925). No injury is claimed to have resulted to appellants, and the irregularity is not of that character which would have justified the court in setting aside the venire.

Appellants also sought to quash the venire on the ground that some of the veniremen were not summoned by the sheriff or deputy sheriff. The evidence heard upon the motion is not brought forward, but the court qualifies the bill by stating that upon hearing the evidence it developed that the constable, acting under the direction of the sheriff, summoned some of the veniremen. There is no complaint that any veniremen were absent, and we must assume they were present and available to appellants, regardless of what officer summoned them.. This being true, the irregularity, if any, in securing their presence, seems unavailing. Brown v. State, 87 Tex. Cr. R. 261, 222 S. W. 252; Carpenter v. State, 98 Tex. Cr. R. 307, 265 S. W. 706.

Appellants offered in evidence certain pages from the docket of the justice of the peace, which showed cases against four named negroes upon charges of vagrancy, complaints charging which had been filed by deceased. We learn from the bill that the four named parties had been convicted, paid part of the fines themselves, and the balance was paid by deceased. If we gather the import of the bill, appellants sought to impeach the judgments, averring as conclusions that said parties were not vagrants, but that deceased had instigated the prosecutions and paid part of their fines in order to improperly hold them and force them to work for him. No connection is shown between the four named parties and appellants, save from a statement in the bill that appellants were working for. deceased when the transactions occurred with reference to the four parties named. The bill presents no error in the ruling of the court in excluding the proffered evidence. It seems entirely irrelevant to any issue oin the present ease.

Appellants sought by special charge to have the jury told that, if deceased had practiced “peonage” against them and they attempted to gain their liberty from such system, the same should be considered by the jury in mitigation of the punishment. An examination of the facts leads us to the opinion that such issue was not raised. Both of the appellants had left deceased’s premises, owing him. Deceased had gone after them, brought them back, and they had continued to work for him. If he used coercion in taking them back to his farm, the evidence shows they had continued to work there for several weeks, with many opportunities to leave. The killing was precipitated because deceased endeavored to have Benton surrender a pistol which he was carrying. Benton resisted, with the ultimate design, it seems, of killing and robbing deceased. Even if the issue which appellant sought to have presented had been raised, the special charge requested was upon the weight of the evidence. For authorities collated, see note 91, art. 658, Vernon’s C. C. P. (1925), vol. 2.

It was sought to exclude the testimony of Lillie V. Tucker on the ground that she was the common-law wife of appellant Benton. The objection was not tenable. Mann v. State, 44 Tex. 642; Sims v. State, 30 Tex. App. 605, 18 S. W. 410; Young v. State, 49 Tex. Cr. R. 207, 92 S. W. 841; Branch’s Ann. Tex. P. C. § 149. The most that can be said for the evidence upon the point under consideration is that it shows the woman and Benton were living together in adultery.

Appellant Gipson objected to the confession of his codefendant, Benton, when put in evidence by the state. The court overruled the objection, but instructed the jury that Benton’s confession was not to be considered by them against Gipson. No error was committed by the court in admitting the confession of Benton with the instruction indicated. It was, of course, admissible against Benton, and according to the confession Gipson’s acts were so interwoven with Benton’s that to attempt to eliminate Gipson from the confession would have rendered it incomplete, fragmentary, and unintelligible. Smith v. State, 91 Tex. Cr. R. 15, 237 S. W. 265; Walker v. State, 88 Tex. Cr. R. 389, 227 S. W. 308.

Appellants complained of the following language in argument;

“The statement of Robert at Lubbock was practically identical with his statement here, except those parts that refer to Son Gipson, and it would have been far better for Son if he had admitted that he went the whole way, than it would have been for him to have stopped where he did, because the circumstances show he did' go on, and that they were both lying about it.”

Appellant Benton, while testifying in his own behalf, undertook to exonerate Gipson, and sought to leave the impression with the jury that what Gipson did was under Benton’s direction, and that Gipson abandoned the enterprise before the death of Morgan was accomplished. He states that, after Morgan was shot, Gipson helped him throw the body into the canyon; but as they were leaving the place, and it was discovered Morgan was not dead, and when he (Benton) started back to Morgan, that Gipson ran, after which Benton claims he never saw Gipson any more. This is practically the same as Gipson’s testimony given on the trial; he claiming that Benton compelled Mm (Gipson) to do what he did, and that he was- afraid not to do as he was bidden, for fear he would be killed by Benton.

Unfortunately for Gipson, the physical facts upon the ground showed that, from the point where Morgan’s body was thrown over the bluff, the tracks of two parties appeared for a way, then the tracks of three (the one in the middle, from the size and shape of the shoes, appearing to be that of deceased) continued for a short distance, and then the middle tracks again disappeared and the two larger tracks were still going in the direction where the body was found. The tracks made by one of these shoes showed a cracked sole, which corresponded with Gipson’s shoes, found under the house, where he had concealed them. These circumstances indicated that, after Morgan had been shot and thrown off the bluff, but not.killed outright, Gipson aided Benton in getting him to the place where the dead body was finally discovered, and justified the prosecuting attorney in the argument complained of.

Finding no error in the record, the judgment is affirmed, 
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