— The offense is bigamy; punishment fixed at confinement in the penitentiary for a period of five years.
Appellant and Gladys Gifford were married in July, 1920, and divorced on November 14, 1921. In June, 1922, appellant was married to Ester Benair. This appear from appellant’s testimony given as a witness in his own behalf. After the divorce, Gladys Johnson remained at the home of her mother until January, 1922. On December 9, 1921, appellant wrote her a letter, which was read in evidence, which began: “Dеar Wife & Baby.” In it he acknowledged the receipt of a “sweet letter” from her and said that he was willing to do what was right and that he wanted her to come bаck to him as he could not stay away from her and the baby. He then used this expression:
“Now, if you think I don’t intend to marry you, I will go and get a license and send them to you and when you come, you can bring them back and we will get married again for never to part.”
He said further:
“And if you care for me like you say you do, you may come as quick as possible.”
A few days after this letter was written, appellant went to the home of the mother of Gladys Johnson and took her to Houston where he rented an apartment in which he, she and the baby resided. Appellant and Gladys occupied the same room and the same bed, and he held her out as his wife. This сontinued for several months, after which she returned to her mother’s home. While there, he wrote several letters to her. These were written during the month of May, 1922. Sоme of them were addressed: “Dear Wife & Baby” and were affectionate in their tone,.though they stated no specific facts except he was sending some money and some pictures of the baby.
Appellant had an examining triaLon July 11, 1922 in which Gladys Johnson testified. Her testimony was reduced to writing and signed by her. It was intrоduced by the appellant upon his trial. In it was embraced no fact not revealed from other testimony except that she said that on going to Houston on January 2, 1922, she and appellant went to a certain preacher and were married; that the ap *486 pellant had previously arranged with the рreacher; that he delivered an envelope to him and the marriage ceremony was performed; that after this they went to the abode prоvided by the appellant at which they lived.
Touching the marriage in January, appellant testified, in substance, that after his marriage to Ester Benair, Gladys Johnson charged him with bigamy ‘! and says that I remarried her over again by the Reverend Lee.” “She testified in court to that effect.” Appellant then caused her testimоny to be read, to which reference has been made.
Appellant seems not to have been represented by an attorney upon the trial. No objection was made to any of the testimony introduced; nor was there a motion to exclude it. This appeal is based upon the proposition that the letters in question were confidential communications between husband and wife and were privileged. Our statute on the subject, so far as pertinent, rеads thus:
“Neither husband nor wife shall, in any case, testify as to communications made by one to the other, while married; nor shall they, after the marriage relatiоn ceases, be made witnesses as to any such communication made while the marriage relation subsisted.” (Art. 794, C. C. P.)
Another statute reads thus:
“The husband and wife may, in all criminal actions, be witnеsses for each other; but they shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by оne against the other.” (Art. 795, C. C. P.)
In Brock v. State,
“The wife of appellant was used as a witness by the State and gave evidence of a most damaging character against him. Shе was required to hold up before the jury the family quarrels, the family disturbances, alleged assaults upon her by appellant, as evidence against him. ’ ’
The statutе (Art. 795, supra) forbade the State to call and use the wife of the accused as a witness against him. As a state’s witness, she was disqualified. This was known to the State’s cоunsel and the trial judge. Therefore no objection from the accused was required. It was so decided in Brock’s case, supra.
In Ward’s case,
*487
In the present case, several of the letters introduced and read in evidence were written by the appellant to Gladys Johnson at a time when she, according to the State’s theory, was his wife. The letters were identified by the appellant in testifying as a witnеss and were received in evidence without objection. Our statute upon the subject embraces two phases. Article 795, C. C. P. forbids the wife to testify against her husband except in instances where he is charged with an offense against her. The appellant’s wife was not called to testify against him. Article 794, C. C. P., conferrеd upon the husband the privilege of refusing to testify to confidential communications by him to his wife, and to have excluded the letters written by him to her. This was held in Gross v. State,
The letter of Dee. 9, 1921, was written-at a time when Gladys was not the wife of appellant and was not privileged because it was not a confidential communication from a husband to his wife. Under-hill’s Crim. Ev., 3rd Ed., Sec. 305, p. 429, note 36; also Art. 795, supra. While Article 795, C. C. P., prohibited the State from calling appellant’s wife аs a witness, it expressly authorized him to call her. She had given testimony at the examining trial, which was reduced to writing. Appellant desired to introduce it in his behalf, to which the State consented. The State could not have used this evidence. Woodall v. State,
- The State having waived its right to exclude the declarations of the wife as hearsay, no law known to us precluded the use of them by the appellant. The appellant on this appeal suggests that he was ovеrreached and thereby induced to read the testimony in question. An examination of the record reveals that appellant voluntarily offered this record in connection with his direct testimony. He expressly stated more than once that he desired it read to the jury. Nothing is discovered in the conduct of the State’s counsel which would' justify overturning the verdict which has received the sanction of the trial court.
*488 One conducting Ms own trial is at a disadvantage, and under such circumstances, the record is scrutinized with special care by this court. In a case less than capital, the law does not make essential that the accused be represented by counsel. This cannot be ignored by this court where the evidence is sufficient and no errors are presented for review.
We will add that the evidence, aside from that complained of on appeal, is deemed sufficient to show that Gladys Johnson was appellant’s lawful wife when he married Ester Benair.
The judgment is affirmed. '
Affirmed.