I do not agree to the reversal of this case, and because I believe the question is an important one, I will express my views.
On the trial the State was permitted to prove by appellant on cross-examination that, on the day before the trial, he had married Susie Jones. The State was also permitted to prove by Sheriff Satterfield that Susie Jones was present in court. The State then called her to the witness stand and proved by her that on the day preceding she had married appellant; and then proceeded to ask her certain questions concerning the case. Appellant objected to any interrogation of the witness by the State, because she was his wife. This objection was sustained by the court, all of the other objections leading up to this having been overruled by the court. Appellant insists that when it was first disclosed that Susie Jones was the wife of appellant, the conduct of the State in bringing her to the witness stand and proving by her that she was appellant's wife, and then proceeding to ask her questions regarding the case, and compelling appellant to object to her testimony on the ground that she was his wife, was not in good faith, but was a spectacular performance on the part of the State, calculated to prejudice appellant before the jury, and was really the use of appellant's wife against him as a witness. I believe it was proper for the State to assure itself that Susie Jones was really the wife of appellant and that she had married him only the day before; and it was not only competent to elicit this fact from appellant himself in cross-examination, but the State was authorized to show that Susie Jones was in attendance on the court, and to prove by her also that she had married appellant. And I can not say that this conduct on the part of counsel for the State was not done in good faith. If she had not been presented to the jury they would not have been apprised of the fact that she was then present, and in a situation to testify for appellant, and her absence might have been accounted for on various pretexts. If any fact regarding the homicide had been elicited from her, of course, a different question would be presented; but here we have in evidence, strongly it is true, the fact of her intermarriage with appellant on the day before, and her presence then in court. This was not using her as a witness against appellant, but was affording the jury an insight into his conduct with reference to her, which they had a right to know. The circumstances here shown, to wit, the fact of appellant's intermarriage with the principal State's witness only the day before, would tend to show, at least it would bear that construction, that he had married her for the purpose of suppressing her testimony. I understand it is a rule of universal application *Page 239 that it can always be shown that a defendant has fabricated or suppressed testimony. Appellant further maintains that the court committed an error in allowing State's counsel to animadvert on the failure of appellant to use his wife as a witness on his behalf; and in this connection he complains that the court refused to give certain requested special instructions on this subject. It has long been the doctrine in this State that argument could be made on the failure of a defendant to use his wife as a witness. Mercer v. State, 17 Texas Crim. App., 452; Armstrong v. State, 34 Tex.Crim. Rep.; Smith v. State, 3 Texas Ct. Rep., 357, 65 S.W. Rep., 186; Locklin v. State, 8 Texas Ct. Rep., ___.
Boyd v. State, 33 Tex.Crim. Rep., and authorities cited in that connection in the majority opinion are not in point, because the question there was bigamy, and the former and subsequent marriages were the material issues in the case, and, of course, the first wife was not a competent witness against the husband to prove the marriage. Graves v. United States,150 U.S. 118, also cited by appellant's counsel, is not in point. There it was held by a majority of the court that, inasmuch as the wife could not be a witness for appellant, her absence from his side during the trial could not be argued before the jury to his prejudice. This is not the character of case here presented, for our statute authorizes the wife to be a witness for the husband, and his failure to produce her, where the record shows she was present at the homicide, is both upon principle and authority a legitimate subject for criticism on the part of the State. In this case she was present at the homicide, had been used on a former trial as a witness on behalf of the State. Appellant was shown to have married her on the day before. Under the circumstances, the State could not use her. Miller v. State,37 Tex. Crim. 575. But it was entirely proper that the jury should be informed of the reason that prevented the State from placing her on the stand; and this although it might suggest very strongly appellant had married her for the express purpose of suppressing her evidence.
Any other view would overrule the line of cases already referred to in which it has been uniformly held by this court that it was competent for counsel in argument to refer to the failure of appellant to use his wife as a witness where the facts show that she was present at the time of the alleged offense, and would be a material witness for him if his theory is true. If an argument of this character can be made on inferences merely, it would certainly indicate that so much of the facts can be proven from which the inferences or deductions can be drawn. In this particular case no fact was proven in regard to the case by appellant's wife. The facts developed by other witnesses showed that she was present at the time of the homicide, and was a witness for the State on the former trial, and it was merely shown by her that she had married defendant on the day previous to the trial. On objection being made to her testifying, the court declared her disqualified and sustained the objections. I can not regard this as using the wife as a witness against her husband. Only the disqualifying fact was shown by her and no *Page 240 more. Therefore, I do not believe the court is correct in holding this case should be reversed, inasmuch as the wife testified to no fact in the case in regard to the homicide, and consequently was not used as a witness against him, which is the language of the statute.