Appellant was convicted of murder in the first degree, and his punishment fixed at confinement in the penitentiary for life.
The evidence shows that appellant about dusk went to the home of a neighbor, where deceased, Bob Lyles and his wife were stopping; called for deceased, deceased being in the back part of the house. Upon being notified by an inmate of the home who was sitting on the gallery that some one was at the gate and wanted to see him, deceased came to the front steps, and at this juncture was warned by said inmate, whereupon deceased started back in the house, and was shot to death by appellant. The bullets from the gun not only killed deceased but his wife.
Upon the trial appellant's wife was placed on the stand, and she testified that deceased, a short while before the homicide, had approached her sick bed during the absence of her husband and forced her to have carnal knowledge with him. This information, she states, was given by her to appellant. And the other evidence shows that appellant after receiving this information sought out deceased and killed him as above stated.
Appellant's first assignment complains that the court erred in permitting the State to use Mrs. Jones as a witness against defendant and in not confining the State on cross-examination of Mrs. Jones as a witness, to the matter brought out by examination in chief of said witness by defendant. Appellant further insists that it was improper for the State to examine the wife of defendant about matters and things not brought out by defendant. The bill of exceptions presenting this matter is lengthy, covering the larger part of a very voluminous record. As stated, all that was proved by the defense was that deceased, without the consent of Mrs. Jones had raped her. Then the witness was turned over to the State for cross-examination. The record shows that the State was then permitted to prove by Mrs. Jones, that she had previous carnal intercourse with deceased on various occasions; and to lay predicates and subsequently prove by other witnesses, that she had been found at an assignation house in the City of Dallas with deceased; and various matters along this line were brought out by the State on cross-examination of this witness, for the purpose of discrediting her general statement to the effect that she had been raped by deceased. The question here under consideration was passed upon by us in Messer v. State, *Page 474 43 Tex. Crim. 97, at 107, where the following language was used: "The law does not permit the husband or wife to be witnesses against each other. If a husband is on trial and his wife is a witness, and she should swear to facts injurious to him in answer to questions he propounds he cannot complain. But where she swears to certain facts and circumstances, the cross-examination must be confined to the matters elicited in chief. Of course everything legitimate for the purpose of testing her knowledge of the facts testified to by her, her bias, her prejudice, in fact any matter that legitimately goes to her discredit is admissible on cross-examination." We have carefully read the cross-examination of appellant's wife, and do not think anything was asked or proved that was not in the legitimate scope of a cross-examination of the statement that she made in her examination in chief. This being true, we do not think there was any error in the court admitting the same.
The second assignment complains that the court erred in permitting the isolated acts of adultery on the part of appellant's wife with deceased, covering a period of several years. This we take it, was legitimate cross-examination of her. She had sworn, as stated, that she had been raped by deceased. Certainly if the State could prove by her or from any other source, that she had been habitually having carnal intercourse with deceased, this would show the absolute falsity of her statement that she had been raped by deceased; at least would tend strongly to do so.
Nor do we think that the court erred, as insisted in appellant's third assignment, in permitting the State, after laying proper predicate for impeachment of Mrs. Jones, to prove by J.D. Kurfman that he had seen Mrs. Jones in bed with deceased at an assignation house run by Black Mary. Various other matters are complained of along the line discussed, that we do not deem necessary to review.
Appellant's ninth assignment complains that the court erred in permitting Charley Rainey to testify that he had had a fight with appellant about what Rainey had said to appellant relating to deceased and appellant's wife. The bill shows that appellant denied on cross-examination that he had had a fight about the matter. It certainly was permissible to contradict him about said fight, since the bill shows that the witness Rainey's testimony was to the effect that appellant's wife and deceased had been having improper relations.
We do not think that the court erred in failing to give appellant's special charges, since the same were covered by the main charge of the court so far as applicable. We have carefully examined the charge of the court, and believe the same is correct. There is no error in this record, and the judgment is affirmed.
Affirmed. *Page 475
ON MOTION FOR REHEARING. April 10, 1907.