Mann v. State
44 Tex. 642
Tex.
1876
Check Treatment
Gould, Associate Justice.

Thе Code of Criminal Procedure, following the common law, provides that “the husband and wife Can in no case testify against each other except in a criminal prosecutiоn for an offense committed by one against the other.” (Pаschal’s Dig., aft. 3113.) There is nothing in the language of the code to justify the extension of this prohibition beyond its terms or beyond the common-law rule, so as to embrace parties who, thоugh never legally married, in violation of law lived together аnd recognized each other as husband and wife. (Rosc. Cr. Ev., p. 148; 1 Phillips’s Ev., pp. 69, 70; 1 Whart. Am. Cr. Law, (6th ed.,) sec. 772; Bathews v. Golindo, 4 Bing., 610.)

It follows that the objection to the competency of ‍‌​​‌‌​​‌‌​​​​‌​‌‌​‌‌​​‌​‌‌​​‌​​‌‌​​‌​‌​​​​‌‌‌‌‌​‍Mrs. Lotice or Mrs. Mann was properly overruled.

The court did not err in permitting leading questions to the witness, Teresa Lotice, under the cirсumstances stated in the bill of exceptions. It is a matter much within the discretion of the court, and in this case we see nо reason to hold that this discretion was not properly еxercised.

The charge of the court was explicit, full, and ‍‌​​‌‌​​‌‌​​​​‌​‌‌​‌‌​​‌​‌‌​​‌​​‌‌​​‌​‌​​​​‌‌‌‌‌​‍fair, and, indeed, has not been objected to.

We think, howеver, that a new trial should have beén granted.

Looking to the fаct that without the testimony of Teresa ‍‌​​‌‌​​‌‌​​​​‌​‌‌​‌‌​​‌​‌‌​​‌​​‌‌​​‌​‌​​​​‌‌‌‌‌​‍Lotke no caséis made out against the defendant; that on *644the stand she at first wholly exculpated him from the crime; that her testimony inculpating thе accused was drawn out by leading questions at a subsequent stage of the trial, and was of itself indefinite and unsatisfactory аs to the degree of resistance made and forcе used; that her demeanor on the stand showed great excitement and timidity; that the testimony of her mother as to complaint made by her daughter is also indefinite, and the medical tеstimony contradictory ; that the witness, Teresa, after the trial, made oath that her first statements when on the stand, to the effect that the accused had not injured her, were true, аnd her statements to the contrary were made not knowing thеir bearing, and were untrue; that her mother, Mrs. Lotice, likewise swore, in support of the motion for new trial, that her daughter was weak-minded and unreliable. We think the case was such as rеquired that the motion for a new trial should be granted.

It has been held a good ground for new trial in civil cases that a matеrial witness had since ‍‌​​‌‌​​‌‌​​​​‌​‌‌​‌‌​​‌​‌‌​​‌​​‌‌​​‌​‌​​​​‌‌‌‌‌​‍the trial been convicted of perjury on his own confession. (Great Falls Man’f. Co. v. Matthews, 5 N. H., 174.)

So where a witness makes affidavit of his own mistake. (Richardson v. Fisher, 1 Benj., 145.)

Looking at the entire case, including the affidavits, it is our opinion that the guilt of the appellant was left too uncertain, and ‍‌​​‌‌​​‌‌​​​​‌​‌‌​‌‌​​‌​‌‌​​‌​​‌‌​​‌​‌​​​​‌‌‌‌‌​‍the chаracter of the evidence against him appeаred too frail and unreliable, to justify the court in refusing him anothеr trial.

The affidavits certainly show material testimony, which cоmes sufficiently within the meaning of new testimony, discovered sincе the trial. The statute regulating new trials in criminal cases should be liberally construed to promote the ends of justice.

Because the court erred in refusing a new trial, the judgment is reversed and the cause remanded.

Reversed and remanded.