The cause was tried in February, 1915, long after the judgment convicting appellant of the crime of murder had been affirmed by the Court of Criminal Appeals, and while he was confined in the penitentiary in accordance to the sentence imposed upon him. The action of the court in sustaining the motion of appellees to suppress the deposition of appellant as a witness, taken October 15, 1913, on that ground, is assigned as error. The contention made in support of the assignment is that appellant was a competent witness at the time his deposition was taken, notwithstanding he had been convicted and sentenced to a term in the penitentiary, because the judgment and sentence against him were suspended by an appeal he had prosecuted which was then undetermined. The assignment must be overruled. The common-law rule which renders a person who has been convicted of such a crime incompetent as a witness is in force in this state. Webster v. Mann, 56 Tex. 119, 42 Am.Rep. 688; Tillman v. Fletcher, 78 Tex. 673, 15 S.W. 161; Rogers v. Tompkins, 87 S.W. 379. In the case last cited the court quotes approvingly from 13 Cyc. 994, as follows:
"As a general rule, the status of the witness at the time of the trial governs the question of his competency, for, in contemplation of law, the deposition itself is the witness, and the witness is presumed to testify when the deposition is used."
In the case first cited the court said:
"The judgment of conviction is but the evidence of the moral depravity which creates the disqualification; and the reason for the exclusion of the testimony of a party while under indictment upon which a conviction is subsequently had is just as strong as through his testimony was given after conviction. The facts and law existing at the time of the trial, and not at the time of the taking of a deposition, must be looked to ordinarily to determine its competency"
It appeared from the testimony that the land in controversy was appellant's homestead at the time he commenced his suit to partition it. It is contended that the court, therefore, erred when he awarded a partition thereof at the instance of appellees. The contention would be sustained but for the fact that it is thought the effect of appellant's suit to partition the land operated as an election by him to no longer use or occupy it as a homestead. In Moore v. Moore, 89 Tex. 29,33 S.W. 217, which was a suit by the surviving second wife for a partition between herself and the heirs of the first wife of the decedent, the Supreme Court, after declaring that the second wife was entitled under the Constitution (article 16, § 52) "to retain possession of the homestead during her life, if she chose to use or occupy it as such," said:
"But she had the right to abandon the use of it as a homestead, when it would become subject to partition as other property When she filed this suit and asked the court to partition the estate, including the property claimed as a homestead afterwards, it was a waiver of her right to use and occupy it as a homestead."
If the commencement by appellant of the suit to partition the land was in effect an election by him to no longer use or occupy it as a homestead, it is not believed he could thereafterwards, by an amendment of his petition changing the suit to one of trespass to try title, resume as against appellees, who had answered the suit, the right he had abandoned.
The complaints made by appellant, based on the action of the court in refusing on his motion to dismiss the suit, and refusing to submit to the jury an issue as to whether he had reacquired title to the land by force of statute of limitations after he conveyed it to his wife, Thursday, are believed to be without merit when considered with reference to the record.
The conveyance to appellant's wife, Thursday, was of "200 acres off of the north end of the tract." Appellant's suit was for the entire tract, alleged to contain 213 acres. The decree of the court directed a partition of the 213 acres. As the entire tract before the conveyance by appellant to his wife, Thursday, was a part of his separate estate, no reason is apparent why he was denied a recovery of the part of the tract not conveyed by his deed to his said wife. Therefore the judgment will be so reformed as to adjudge a recovery by him of that part, and a partition between him and appellees of the 200 acres off the north end of the tract only; and, as so reformed, it will be affirmed, and the cause will be remanded, so that the 200 acres may be partitioned as directed in the judgment. *Page 32