40 S.W. 312 | Tex. Crim. App. | 1897
Appellant was convicted of abortion, and his punishment assessed at confinement in the penitentiary for a term of seven years; hence this appeal. The record contains thirty-six bills of exception, but only such will be considered as we deem necessary to a proper disposition of this case. A number of these bills *577
(beginning with the first) relate to the testimony of Mrs. Allene Miller, formerly Miss Allene Turnage, appellant objecting to her testimony on the ground that she was his wife. The record shows without controversy that at the time of the alleged offense, to-wit: on the 18th of November, 1895, the prosecutrix, then Miss Allene Turnage, was an unmarried woman; that on the 27th of January, 1896, she and the defendant were married. The indictment in this case was presented on the 8th of February, 1896, and the conviction occurred on the 8th of September, 1896. The record shows that said witness, Mrs. Allene Miller, testified, over appellant's objections, he insisting that she was his wife, and was not authorized or permitted to testify against him. The conviction was had mainly, if not entirely, upon her evidence. We presume the ruling of the judge authorizing her to testify was based upon one or two propositions: First, that the matters to which she was called to testify about, transpired before the intermarriage between the prosecutrix and defendant; and, second, that her testimony was authorized, because the abortion was personal violence by the husband against her. At common law neither the husband nor the wife were admissible as witnesses in a case, civil or criminal, in which the other was a party. See, 1 Greenl., Ev., Sec. 334; and authorities cited in note 2. Our statute on the subject has modified the rule. See, Code Crim. Proc., 1895, Arts. 774, 775. We quote the last article, to-wit: "The husband and wife may in all criminal actions be witnesses for each other, but they shall in no case testify against each other, except in a criminal prosecution for an offense committed by one against the other." This statute has been construed with such strictness as that a wife, though introduced for the husband, cannot be cross-examined, except as to matters brought out and directly involved in the examination in chief. See, Creamer v. State,
Reversed and Remanded.