In order to correctly understand the questions decided in this case, we will briefly state the case and the issues. Appellant was convicted for the murder of W.B. Silliman on August 14, 1913, and his punishment assessed at life imprisonment.
Appellant and his wife were boarding and had a room at Mr. Silliman's for some short time prior to the homicide. They had no children. Silliman and his wife had several small children. From time to time while appellant and his wife were boarding and rooming at Silliman's, appellant abused, struck and whipped some of Silliman's children. He thus abused and struck one or two of them late in the evening or early night, prior to the homicide the next morning just after breakfast. Silliman was informed of the mistreatment of his children. He had put up with it before, every time it occurred. The next morning just before the killing, he ordered appellant to leave his house. Appellant declined to do so, stating he would not until the end of the month. The evidence indicates that deceased then said to him to come out in the yard and they would settle it. Deceased went on out in the yard and was standing talkink to some friends smoking a cigarette which he was holding between the fingers of his left hand. He was in his shirt sleeves and wholly unarmed. Appellant went in his room, armed himself with a big six-shooter, secreted it in his clothes about his person and walked out to where deceased was standing talking to others. Appellant was smoking his pipe. He walked up to where deceased was and said, "I am here now, what do you want?" or "what will yon have?" The witnesses differ as to what Silliman then said. There were several eyewitnesses present who heard and saw everything that was then said and done. Several of these witnesses said that Silliman replied that he wanted him to get out of his house, and said nothing more to him. Appellant and two of his witnesses said that Silliman's reply to him was, "Well, I want you *Page 11 to move out of my house, you damned old son-of-a-bitch." The only difference between the witnesses on this point was whether Silliman said "you damned old son-of-a-bitch." All of the witnesses, including appellant himself, say that Silliman made no threat, made no motion of any kind to assault, or do appellant any kind of injury. Appellant then pulled his big six-shooter and at once shot at the deceased, evidently missing him. He then removed his pipe from the center of his mouth to one side thereof, deliberately stepped back three or four steps, raised his left arm, rested the six-shooter thereon, deliberately aimed and fired at the deceased, the ball striking him in the left arm, thence through it into the body, and through his heart, killing him instantly. This was in front of Silliman's house a few steps from his front gallery. Several eyewitnesses who testified were on this gallery or standing at or near deceased when he was killed. Appellant at once walked back on the gallery and his wife came to him. She and he both testified she said to him, "Why did you do it?" and each testified that he replied, "Because I had to." Several other witnesses who were present, most of them disinterested, said he replied, "Because I wanted to."
Appellant had an examining trial soon after the killing. He testified at the time. His testimony was reduced to writing and signed by him. This was proven up and the defendant himself introduced it on this trial. It is shown thereby that the first thing he testified was: "Of course, I will have to go back and establish a motive, if a motive there be, for this killing." Then he tells of the trouble with deceased's children and his whipping or striking them from time to time and what occurred thereabouts the night before the killing and that the deceased because thereof the next morning ordered him to leave, etc. He further testified, "I killed Mr. Silliman because he called me a God damn son-of-a-bitch, and that is the sole reason I killed him." He denied making this statement on this trial, or at least attempted to do so, but in addition to his written signed testimony, which he produced and introduced himself, the State introduced several other witnesses who swore positively that appellant, on the examining trial, swore exactly as quoted above. By his whole testimony at that time there was no intimation that he killed deceased because deceased had insulted his wife.
On this trial appellant sought to reduce the offense, if any, to manslaughter. He introduced his wife and had her testify that the evening before the killing deceased insulted her, caught hold of her, attempted to pull, or did pull her into his, deceased's, room; in effect, proposing or attempting to induce her to permit him to have sexual intercourse with her; that she told appellant of this that night and that that was the cause of appellant killing the deceased. He testified that she told him of this insult to her by deceased that night and that was the reason he killed deceased the next morning. She also testified on this trial that deceased had recently twice before insulted her with the same intent and for the same purpose, but that she had not told her husband of either of those insults and had told him only of the one she claimed occurred the *Page 12 night before; that she had told no one else, — not even the appellant's attorneys, nor until she testified on the stand at this time. That she swore she did not tell her husband, in no possible way was requiring her to divulge any confidential communication, but the very reverse of this.
It will thus be seen that appellant, for the first time, on the trial of this cause claimed, and he and his wife testified, that he killed deceased because of this alleged insult by deceased to her the night before. The State contended that her said testimony was false and undertook to show the falsity thereof by showing and proving by her on cross-examination that she had not told her husband of either of the two previous claimed insults by deceased to her, and to impeach her by showing that at once after the killing she called Mr. Bishop, the Baptist minister, over the `phone, to come to see her and he did so in response to her request, and saw her in her room upon his arrival. She said when the Baptist minister came in her room, he shook hands with her, and said to her, "Mrs. Taylor, this is awful." She admitted that she replied to him, "Yes, it certainly is," but denied she then said to him, "I don't know why he did it, or the cause or reason for doing it." In impeachment of her the court permitted Mr. Bishop, the Baptist minister, to testify that she did say to him at the time as quoted just above.
The sole question in this case is whether or not the State, under the circumstances, should have been permitted to cross-examine Mrs. Taylor and have her testify that she told appellant at no time of either of the first two claimed insults by deceased to her, for the purpose of tending to show, and showing, that her testimony to the effect that deceased had insulted her the night before and she had told appellant was untrue, and that, as a matter of fact, deceased had never at any time insulted her and she at no time had told her husband he had. And whether the State could impeach her by the Baptist minister as was done.
Our statute on the subject is:
Article 794, Code Criminal Procedure: "Neither husband nor wife shall in any case testify as to the communication made by one to the other while married. . . ." (The latter part of this article does not apply, as this case was not an accusation against appellant of any offense upon her person.)
Article 795, Code Criminal Procedure: "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 criminal prosecution for an offense committed by one against the other."
These articles have been in our Code at least since 1856. They have many times been construed and applied by the decisions of this court and the Supreme Court, while it had criminal jurisdiction. By both courts it has always been held that when the husband who is on trial introduces his wife to testify in his behalf and she does so that she is subject to cross-examination just like any other witness, save and except that new incriminating evidence can not be brought out against *Page 13 the accused by her; and that she can be impeached in the same way and to the same extent as any other witness can be.
In one of the first cases where these statutes were construed it was contended by an accused that the wife could not be thus cross-examined and that she could not be impeached, the Supreme Court, in Creamer v. State, 34 Tex. 173, said:
"We are unwilling to believe that the Legislature intended recklessly to strike a fatal blow at the very foundation of all judicial investigation and truth, and at the same time to open a wide door to mistakes, errors, fraud and perjury. The principal if not the only object of a cross-examination is to test the truth of the evidence given on the examination in chief; not to elicit new facts, but to criticise and weigh those which have already been given; to sift the truth from error, prejudice and ignorance, and to present to the court and jury only that which is the true measure of justice and equity. Greenleaf says that the object of a cross-examination `is to fully investigate and ascertain the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motive, his inclination, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description, and submit them to the consideration of the jury before whom he has testified, who have thus an opportunity of observing his demeanor, and determining the just weight and value of his testimony.' (1 Greenleaf, 446, 449; see also 1 Starkie Ev., 129.) We are unable to see how a cross-examination of the wife, properly understood, could be construed into testimony against her husband, and more especially if the wife has testified in her examination in chief to nothing but the truth. And if she has testified falsely, then truth, justice and the law demand that she should be exposed, regardless of the consequences. We are therefore of the opinion that whenever a husband or wife is upon the witness stand to testify in behalf of the other, he or she so testifying should be subjected to as rigid a cross-examination as any other witness, with the exception only that he or she could not be examined in regard to anything against the other about which there had been no testimony on the examination in chief. This we believe is the true intent and meaning of the statute, and the only one that can reconcile the law with the principles of truth and justice."
This decision has many times been cited and approved by this court and our Supreme Court. There can be no question but that it announces the correct doctrine and proper construction of said statute. It is as equally well settled that the wife can be impeached as any other witness and as was done in this case, by a long line of decisions of this court and of the Supreme Court. On both these points we cite only some of them, — not all by any means. Shelton v. State, 34 Tex. 663; Hampton v. State,45 Tex. 154; Swanney v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 548; Dobbs v. State, 54 Tex.Crim. Rep.; Exon v. State, 33 Tex.Crim. Rep.; Buchanan v. State, *Page 14 41 Tex. Crim. 127; Brown v. State, 61 Tex.Crim. Rep.; Reagan v. State, 70 Tex.Crim. Rep., 157 S.W. Rep., 483; Smith v. State, 44 S.W. Rep., 520; Crews v. State, 34 Tex. Crim. 533; Young v. State, 54 Tex.Crim. Rep.; Red v. State,39 Tex. Crim. 414; Johnson v. State, 162 S.W. Rep., 512; Cameron v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 867; Ward v. State, 70 Tex.Crim. Rep., 159 S.W. Rep., 272; Northcutt v. State, 70 Tex.Crim. Rep., 158 S.W. Rep., 1004; Perry v. State, 153 S.W. Rep., 138; Link v. State, 164 S.W. Rep., 993; Johnson v. State, 28 Texas Crim. App., 17; Jones v. State, 38 Tex.Crim. Rep.; Gaines v. State, 38 Tex. Crim. 202; Merritt v. State, 39 Tex.Crim. Rep.. It is unnecessary to discuss the questions, or point out the special holding in each case. They each specifically hold the cross-examination was correct, and evidence is admissible.
We have cited some of the same cases that Judge Davidson cites in his original opinion herein in the latter part thereof. None of the cases cited by him, when properly understood and properly applied, are in conflict with what we hold herein and the cases we have cited above, save and except one of them.
That case, in conflict herewith, is Marsh v. State,54 Tex. Crim. 144. In view of the long and uniform holding of this court to the contrary of that decision it must be that the court in that case misapprehended the question, otherwise a decision holding as it does on this question would not have been rendered; but whatever was the cause thereof, it is hereby expressly overruled where it is in conflict with what we hold herein and the decisions we have cited above.
There can be no question as we see it but under the statute and the decisions the court committed no error in the matters complained of shown by appellant's bills to the cross-examination of, nor introduction of the testimony contradicting and impeaching appellant's wife. The motion is overruled.
Overruled.