We have carefully considered the motion for rehearing presented by the Assistant Attorney-General. At a former day of this term this court reversed the judgment of the lower court on four errors committed. We will go over the grounds again, and re-examine the record.
1. The first error is in relation to the court's permitting the State to prove by Mrs. Jones, wife of appellant, facts and circumstances not germane to anything she had sworn on her testimony in chief. We held, and still hold, that this can not be done. The law will not permit the husband or wife to be a witness against each other. If the husband is upon trial, and his wife is a witness, and she should swear to facts injurious to him, in answer to questions propounded, he could not complain, but, where she swears to certain facts and circumstances, the cross-examination must be confirned to the matter elicited in chief. Of course, everything which is legitimate for the purpose of testing her knowledge of the facts sworn to, her bias, her prejudice, in fact any matter that goes legitimately to discredit her, is admissible on cross-examination. However, where the State leaves the matter testified to in chief, and proposes to prove independent crimimative facts against the accused, this would not be a cross-examination of the witness. When the matter is departed from, the witness ceases to be a witness for her husband, and becomes a witness for the State. This is absolutely demonstrated by the overwhelming weight of the authority. Mr. Wharton, in his work on Evidence (section 529), says: "Although, in England, counsel, in cross-examination, are permitted to ask questions bearing on the whole case, so as to bring out matters of independent defense, in this country, in most jurisdictions, cross-examinations, with greater propriety, are confined to the subject of the examination in chief, and that of the credit of the witness. If a matter of defense is to be proved, this must be reserved until the cross-examining party has opened his case, when he is at liberty to call the witness to prove such defense." In support of this proposition, Mr. Wharton cites not less than fifty cases, from the States of Now Hampshire, New Jersey, Pennsylvania, Michigan, Indiana, Illinois, Iowa, Wisconsin, Minnesota, Kansas, Nevada, Georgia, California, Arkansas, Nebraska, and a number of others. The Supreme Court of the United States holds that, where the matter sworn to in chief is departed from on so-called cross-examination, the witness becomes the witness of the party who elicits this matter. To illustrate the proposition: The defendant *Page 116 introduces a witness to prove certain facts. The State cross-examines as to these facts, and then proves independent facts by the witness — facts which are not germane to the examination in chief. So far as these facts are concerned, the witness becomes the witness of the defendant. Now, let us illustrate the question before us: An accused party is upon trial for murder. It becomes relevant and important to know when he and his wife were married, or when a certain child of theirs was born, or whether he was at home at a particular hour of a certain night, etc. He introduces his wife, and she swears to the date of the marriage, to the birth of the child, and that her husband on that particular night was at home. The State can cross-examine her thoroughly as to the marriage, where it occurred, who attended, who were the bridesmaids, grooms, and how old the parties were, etc., and then institute an inquiry as to her prejudice, contradictory statements, if there are such, and every matter which is proper to test her means of knowledge and credibility. So, with reference to the birth of the child, and the supposed alibi. This testimony is elicited from the wife, to wit, the marriage, birth of the child, and proof of the alibi. After having cross-examined the witness pertaining to these matters, the State proposed to prove by the defendant's wife that he had a motive to kill the deceased; that he had threatened to kill deceased; that he had arms suitable for that purpose, corresponding with those used at the homicide, etc. These matters are not relevant at all to the marriage, the birth of the child, or the alibi; and, when the State proves these facts by the wife, she then becomes the witness of the State, and is emphatically forced to testify against her husband. We can not give a clearer illustration of this question than that above. In line with the cases referred to above will be found the case of People v. Briggs, 60 How. Prac., 17. In that case, Osborn, P. J. illustrates a provision of the New York statute which provides that the husband and wife shall not testify against each other, and which might have been inserted for a certain purpose, to wit, he says: "For instance, a wife might be called as a witness on behalf of the husband, to prove some one isolated fact. It may be that the Legislature, by saying that she should not be compelled to testify or give evidence against him, intended to prevent, upon cross-examination, an inquiry into any other matters not inquired into upon the direct examination, and which might be very damaging to the husband, and so vice versa." We deem it unnecessary to add additional authorities upon this subject. In Texas and other States the witness is not required to stand aside until the opposing party introduces his evidence. The adverse party can cross-examine the witness thoroughly pertaining to the matters elicited in chief, and will not be required to wait until he presents his testimony in order to prove facts relevant to the main issue, by the witness. He can prove any competent fact by the witness on what is called cross-examination, but this rule does not affect the question at all. Suppose, upon the so-called cross-examination, the matter elicited in chief is completely departed from, and new matter is sought to be established by the witness, which is relevant to the main *Page 117 issue, would the party be permitted to lead the witness in regard to this matter? Would he not still, though he could elicit the matter, be held to examine him just as if he had introduced him? Certainly. By way of illustration: The plaintiff introduces a witness, and proves a relevant fact. The adverse party can cross-examine him thoroughly as to this fact. After doing so, if he leaves this matter, and proposes to prove important relevant facts by the witness introduced by the plaintiff, he is not bound to require him to stand aside, but can do so. Should he propose to prove the facts by loading questions, and the plaintiff objects, not to his right to prove the facts, but leading the witness, this tests the question as to whose witness he is as to this matter. Evidently, he is then the witness of the defendant.
The Assistant Attorney-General insists that anything pertaining to the res gestae can be proved by the wife. In his motion for, rehearing he says: "I concede that the general rule is as stated by the court, that the cross-examination of the wife should be confined to the matters drawn out on the examination in chief, or be germane thereto; but there are well established exceptions to this general rule, which is universal and binding — that is, the right of cross-examination extends to all matters connected with the res gestae, and as to credit." Res gestae of what? Res gestae of what she said in chief? If so, we do not object. Does he mean the res gestae of the homicide? If so, we certainly can not concede any such proposition. Mrs. Jones did not say one word about the homicide. She was not a witness to the homicide, and knew nothing of the facts attending the homicide. If res gestae can be established by the wife or husband, upon cross-examination, then the Assistant Attorney-General's exception should be the rule, instead of that stated by him to be the rule, for we have never yet been able to place any limit to what is called res gestae of a homicide. Our understanding of this rule, as explained by Mr. Stephens in his work on Evidence, is that the homicide has its res gestae, or attending circumstances; that any relevant fact to the main fact is its res gestae, until you extend it into a field in which the fact has no probative force. It would be a novel case in which a relevant fact would not be res gestae of the main fact, or which would not have its own res gestae. Now, we concede that anything that is res gestae to what was said is admissible. Mrs. Jones testified as to the rape by Veal, and his subsequent insulting conduct towards her, and that Veal and appellant had been friendly before she communicated these facts to appellant. The State proved by her, over the objections of appellant, all that matter pertaining to the effort to have the disabilities of her son removed, so that he could make a deed to her, etc. We most seriously would ask if this matter was res gestae to the rape or subsequent insulting conduct? Was it calculated to explain, modify, or to affect in any manner her testimony in regard to Veal's conduct? How and in what manner did it bear on the fact that Veal and Jones had been friendly? If this evidence be a part of the res gestae of the efforts to remove the disabilities of the minor son, *Page 118 then could there be any relevant fact which would not have been res gestae? And instead of confining the cross-examination, so called, to the matters elicited in chief, we would never find a case that did not have res gestae enough to admit anything they proposed to prove. Would not this idea of the Assistant Attorney-General's theory of res gestae be a most remarkable, novel application of this doctrine? We confess that, outside of this motion for rehearing, we have never found such an extension of the doctrine. To condense: It means that the wife can be made a witness against her husband in the face of the prohibition of the statute in regard to any matter relevant to the case, whether it be germane to what she had sworn in chief or not.
It is contended, however, by the Assistant Attorney-General, that in fact the wife was not compelled to testify to any fact which was not germane to her testimony in chief; that there was merely an effort to make her testify to such facts. A very slight investigation of this record will demonstrate that several very important facts were sworn to by her, over the objection of appellant. For instance, we refer to bill of exceptions number 3, which was approved by the trial judge. The bill was reserved to the action of the court permitting the State to elicit from Mrs. Jones a great deal of testimony with reference to the transfer by herself of a large amount of property to her infant son, the day before her marriage with the defendant, and thus laying the foundation of the theory of the State in proving a motive for the killing other than that assigned by the appellant. The importance of this testintony must be conceded, for the State relied upon these matters as a motive for the killing, and for the purpose of avoiding the testimony, relied upon by the appellant, regarding the insulting conduct of Veal towards appellant's wife as the cause for the killing. Mrs. Jones had not testified for the defendant in regard to this property transaction, and it was brought out from her by the State, over appellant's objection. If appellant killed Veal on account of his supposed connection with the transfer of the property, it might be considered by the jury as an answer to Mrs. Jones' evidence in regard to the insulting conduct, and tend to show that her testimony in regard to such insulting conduct was a fabrication. Then the antagonism between the two theories was potent and sharp, the defendant relying upon what his wife and Kendall had told him with reference to the insulting conduct of Veal towards his wife, and the State relying upon the fact that the motive operating upon Jones' mind at the killing grew out of the property transaction.
2. The Assistant Attorney-General contends that this court erred in reversing the judgment because the trial court refused to permit Mrs. Jones to be corroborated by the statement of the witness Kendall, in reference to the alleged rape and insulting conduct. He says: "It is never admissible to sustain a witness by proof of general good character or otherwise, until the reputation of the witness is assailed for truth and veracity, or impeached by showing contradictory statements. These are conditions precedent to offering testimony to corroborate or sustain a *Page 119 witness." The original opinion in this case does not insinuate that the State had proved that Mrs. Jones had made contradictory statements about any matter. In that opinion we never discussed the question as to whether the witness could be supported when thus attacked, to wit, by proof of contradictory statements. But, since our attention has been called to this subject, we will go further, and discuss the question as to whether a party can support his witness when thus attacked. We deemed it unnecessary to discuss this in our former opinion. Now, then, was there an effort made to show that Mrs. Jones had made contradictory statements about this matter? There was not, but there was an effort made, and it is claimed that it was successful, to show that her conduct gave the lie to the tale she told; that after this rape by Veil, etc., she visited Veal; that business relations existed between them, etc. There is no difference in the character of the attack. If the State had proved that she had made contradictory statements in regard to the matter testified to by her, every decision in this State is to the effect that she could have been supported by proof that she made the same statement to others as that sworn to on the trial. Acts speak as loud, and demonstrate the condition of the mind as effectually, as words. For what purpose was the evidence introduced, tending to show that she was on friendly terms with Veal, if it was not to establish the fact that what she had said about the insulting conduct was false? There could have been no other purpose. In fact, the evidence would not have been relevant for any other purpose in this case. This attack was as effectual, if not more so, than to have proved that she did make a contradictory statement. Being thus attacked, under all the authorities in this State, the wife could have been supported.
The Assistant Attorney-General cites us to Mr. Wharton and authorities which deny the correctness of a proposition that a witness can be supported when thus attacked. We have written a number of opinions in which we called attention to the fact that Mr. Wharton and a great many cases question or deny the correctness of the proposition. We have not invented this rule for this case, but have applied it to every case in which the question has arisen. The original opinion was based upon this proposition, found in Mr. Wharton's work on Evidence (section 570, and the same section relied on by the Assistant Attorney-General), and the rule is not questioned by any authority, to wit: "On the other hand, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is but proper that such evidence should be rebutted. It has consequently been ruled that statements made by a witness corroborating his evidence upon the trial, such statements being uttered soon after the transaction in litigation, and at a time when the witness could not have been subject to any disturbing influences, are competent when proof has been offered to impeach him, by showing that he had recently fabricated the narrative, or that he testified corruptly." In support of this proposition, Mr. Wharton cites a *Page 120 great number of authorities, common law as well as front the different States of this Union. And in the note to said text we find this: "Russell (volume 3, page 593) holds 'that the better opinion seems to be that such evidence is not admissible, except in cases where the counsel on the other side impute a design to misrepresent, from some motive of interest or relationship." And this note is supported by a great number of authorities, all of which are English cases, including as well Phillips, Starkie, and Hawkins. These excerpts from Mr. Wharton will be found in the very same section quoted and relied upon by the Assistant Attorney-General. If we had based our ruling upon the fact that Mrs. Jones was supported, because proof had been made tending to show that she had made contradictory statements, the excerpt from Mr. Wharton contained in the motion of the Assistant Attorney-General would have had some explanation. But, as before stated, the appellate courts of this State have held, in an unbroken line of decisions, that, where a witness is attacked by showing contradictory statements, the witness can be supported. We are not called upon to go back on that rule, for, as above stated, the opinion is not upon that subject. Now, will any one deny but what the State's case — the opposing case — most powerfully suggests that Mrs. Jones had fabricated her testimony to save her husband's life? There was the motive, the cause assigned, and no doubt argued with great force and effect before the jury. To meet this, appellant had the right to show that his wife did not fabricate this testimony to save her husband; that she told the same story before the killing of Veal. For the first time in this State, so far as we know, the motion for rehearing in this case questions the rule, where when a witness is attacked by showing that he testified corruptly, or had recently fabricated his testimony for a purpose, he could be supported by proof that he (witness) made the same statements before the motive could have existed, and that it was not fabricated, because he had told the same story before. In this case the motive on the part of Mrs. Jones was to save the life of her husband, if her testimony was false. This was the opposing case of the State on the trial.
3. We have no doubt of the correctness of our views in regard to proof of the general reputation of Veal as being a man of unchaste and lecherous habits, as applied to the facts of this case. By analogy, we could adduce any number of cases; for instance, the case of Horbach v. State, 43 Tex. 242. In that case Judge Roberts properly held that the general reputation of Thomas was admissible as a dangerous and violent man when drinking. That testimony was not for the purpose of excusing Horbach for killing Thomas, but for the purpose of determining the light in which Horbach had a right to view the acts and conduct of the deceased, in connection with his bad character. The same principle is applicable here. Did Jones believe what his wife told him? He had a right to look to the general reputation of Veal upon that subject; and the jury had a right to know the general reputation of Veal, in order to determine whether or not Jones believed the story told him by his wife. *Page 121
4. The Assistant Attorney-General contends that the court erred in holding that the testimony of S.Q. Richardson was inadmissible, and insists that, as other witnesses testified that Mrs. Jones and Veal met on friendly terms, therefore the testimony of said Richardson was admissible. Now, Richardson does not swear that the Mrs. Jones who testified in this case, and the wife of the appellant, was the woman that he saw in Veal's office. He swears that Veal said that a certain woman who visited his office was Mrs. Dr. Jones. Suppose Veal had said that it was Mrs. Dr. Jones, the wife of Dr. R.H. Jones, this appellant; would it be contended that this would have been admissible? Would it not be hearsay testimony? If Richardson knew that Mrs. Jones, the wife of appellant, was the lady who visited Veal, and of whom he was testifying, there would be no necessity of stating what Veal said about it. If Richardson knew this witness to be the lady, and that she and Veal conversed, all that was said would have been admissible, because Richardson himself would have identified Mrs. Jones as the wife of appellant. However, he knew nothing of this himself. The State simply proved by him that a woman visited the office of Veal, and that Veal said her name was Mrs. Dr. Jones. As we have said, Veal might have told Richardson that she was Mrs. Dr. Jones, the wife of Dr. R.H. Jones, this appellant; yet, unless Richardson knew that she was the witness Mrs. Dr. Jones, all that Veal said would have been hearsay.
We have gone over the motion made for a new trial made by the Assistant Attorney-General, as well as the transcript herein, and our views have not been shaken in the least, but confirmed. The motion for rehearing filed by the State is overruled, and, in accordance with the original opinion, the judgment of the lower court is reversed, and the cause remanded.
Motion overruled.