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 car 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 their 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 *Page 165 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 the district attorney in which he charged that "This negro (meaning the defendant) deserting 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 can not agree with the fine distinction thus drawn to the extent of holding the argument unsupported by the evidence and hurtful. In every-day 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 controverted. 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 that 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 indicated 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, *Page 166 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 affirmed.
Affirmed.