68 S.W. 993 | Tex. Crim. App. | 1902
Appellant was indicted for murder, was convicted of murder in the first degree, and his punishment assessed at death.
After a careful review of all the matters raised by appellant in this record, the only question we deem necessary to consider at length is the admissibility of certain evidence, as set out in bill of exceptions number 1, which is as follows: "The State, over objections of defendant, propounded to the witness Ed Tully the following questions and elicited the following answers: `When you returned to your buggy, where you left defendant, before going into his house, what did you say to him (defendant)?' Answer: `I asked him if his wife was a truthful woman, and defendant replied that she was.' `What did you then say to him?' Answer: `I told him that his wife had just stated to me that he had cleaned the gun [introduced as the one with which the murder was committed] that morning about 6 o'clock,' to which defendant replied, that he had not had the gun in his hands for about three months. I then arrested him.' To which counsel for defendant objected, for the following reasons, viz: Because the question as to whether or not the gun had been recently cleaned was material, and the State, by the introduction of said evidence (if what the witness told the defendant his wife had said was true) was in fact and in effect proof of declarations of the wife against her husband, and in no way competent evidence of the wife against her husband, and was prejudicial to defendant; it having been shown that defendant's wife had stated to the witness that defendant had cleaned the gun about 6 o'clock the morning of his arrest, said evidence having been heard and considered by the jury; and the court overruled said objections. The defendant excepted to said rulings, and herewith tenders his bill of exceptions." Which is approved with the following explanation: "The witness Tully was testifying to a conversation with the defendant at his house just before his arrest, and, as a part of such conversation, witness testified that he asked the defendant if his wife was a truthful woman; to which defendant replied that she was; and witness then told him his wife had said the gun had been cleaned or washed by defendant that morning about 6 o'clock, which evidence was admitted in evidence as a part of the conversation between the witness and defendant, before his arrest, which led up to his arrest, and was not admitted as a declaration of the wife of defendant and against him, and I so declared at the time." It will be seen from an inspection of the bill of exceptions, that among other reasons appellant urges for the inadmissibility of the testimony is, "it having been shown that defendant's wife had stated to the witness that defendant had cleaned the gun about 6 o'clock the morning of his arrest." We do not *146 understand this to be the statement of a fact, certified to by the judge; but merely a reason urged by appellant why the testimony should be rejected. In the testimony as contained in the bill, there is no statement by the witness Tully that the wife of defendant had told him that defendant had cleaned the gun that morning about 6 o'clock; but the witness merely testified that he told defendant that his wife told him that he had cleaned the gun about 6 o'clock. Then, we have for consideration the bare question whether a false statement by a witness to the effect that the defendant's wife had told him a certain thing, and the defendant's answer thereto, comes within the inhibition of the statute which prohibits the wife testifying against her husband. The first clause of article 774, Code of Criminal Procedure, provides: "Neither the husband nor wife shall in any case testify as to communications made by one to the other while married," etc. Article 775, Code of Criminal Procedure, provides: "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." We think the court erred in admitting this testimony. While it is not a confession or statement of appellant going to incriminate himself that the sheriff uses artifice or deception to secure it is admissible, yet where the sheriff uses what purports to be the declaration of the wife in order to obtain from appellant an incriminating statement, such declaration of the sheriff and answer of the appellant are inadmissible. We would not be understood as holding, however, that the State would be precluded from proving the bare fact that when asked by the sheriff whether or not he had cleaned the gun that morning, appellant answered no, since this, coupled with the previous confession to another witness, would tend to incriminate appellant, in that it would show a contradiction and a studied effort to conceal a fact supposed by appellant to be criminative. But it would not be admissible for the sheriff to state that appellant's wife had said that defendant had cleaned the gun that morning.
Because the court erred in admitting this testimony, as contained in the bill of exceptions above set out, the judgment is reversed and the cause remanded.
Reversed and remanded. *147
