Appellant has filed quite a lengthy and very vigorous motion for rehearing. He presents only some of the points he originally contended for. We will discuss such of them as we deem of sufficient importance.
He, in no way, in the court below contended or intimated that the verdict of, and within itself, was fundamentally or otherwise void. Neither does he raise the question in his motion for rehearing herein, nor his argument in his motion for rehearing by his original attorneys. For the first time, by additional attorneys in this court, in his additional argument for rehearing, he raises this question. Of course, if the verdict is fundamentally erroneous or void so that no valid judgment and sentence could be rendered thereon, the question could as well be raised in this as the lower court. We will first, therefore, pass on this question.
The indictment is a plain indictment for murder and nothing else. It is not an indictment for manslaughter. Manslaughter is embraced by virtue of the statute by inclusion only. McGee v. State, 39 Tex.Crim. Rep.. The court by the charge submitted to the jury for a finding both murder and manslaughter by proper charges for these respective offenses. He first gave a complete charge on murder, and told the jury specifically that if they found him guilty of murder to "assess his punishment at death or confinement in the penitentiary for life, or for any term of years not less than five." He then gave a complete charge on manslaughter and specifically told the jury that if they found him guilty of manslaughter to "assess his punishment at confinement in the penitentiary for a term not less than two, nor more than five years." The penalty prescribed by law for murder and manslaughter is correctly stated in said respective charges by the court. The verdict of the jury was: "We, the jury, find the defendant guilty and assess his punishment at twenty years in the penitentiary." This verdict was received by the lower court and thereon the court entered the proper judgment adjudging appellant "guilty of the offense of murder as found by the jury." The judgment is in every way regular. The sentence followed the judgment under the indeterminate sentence law in the regular form. *Page 163
Appellant, as stated, now for the first time claims that this verdict is void and no judgment and sentence can be based thereon because it did not find of which offense he was guilty, whether of murder or of manslaughter.
The question is so pointedly and effectively decided against appellant by this court in the case of Lee v. State,66 Tex. Crim. 567, 148 S.W. Rep., 567, in an opinion by Judge Davidson, that we think it hardly necessary either to discuss the question or cite the many other decisions sustaining such a verdict. In the Lee case, supra, appellant was indicted for unlawfully making an assault on and to disfigure Stella Lee. The evidence raised, and the court submitted for a finding, both assault to disfigure and aggravated assault. The jury found a general verdict of guilty and assessed his punishment at two years in the penitentiary. The penalty for an assault to disfigure is confinement in the penitentiary not less than two nor more than five years, or by fine not exceeding $2000; for aggravated assault, the punishment is a fine not less than $25 nor more than $1000, or by imprisonment in the county jail not less than one month, nor more than two years, or by both such fine and imprisonment, and the charge of the court told the jury what the punishment was for these offenses. This court, through Judge Davidson, in that case said:
"It is contended that the court erred in not granting appellant's request to have the verdict as returned by the jury corrected, and that, as returned, it is not sufficient. The verdict found appellant guilty under the second count of the indictment specifically, and allotted him a term in the penitentiary of two years. The point of appellant's contention is that inasmuch as the court submitted aggravated assault, and the jury did not specify in the verdict whether they convicted of the disfiguring or the aggravated assault, and refused appellant's request to have it corrected, therefore the verdict is insufficient. Under the circumstances of this case, we are of opinion this proposition is not well taken. It is sometimes the case where the verdict must specify of which offense the conviction is had, and always this is the rule where the conviction was for murder, because the statute imperatively so demands. It may also be necessary in some cases for the jury to specify of what degree the conviction is, but that is usually where the verdict found might apply to either one of the offenses or punishments charged by the court to the jury. This is illustrated in convictions for assault where the fine is $25, and the court has submitted to the jury aggravated and simple assault. It has been held it is necessary for the jury in such cases to specify what degree because $25 is the lowest fine for aggravated assault, and the highest punishment for simple assault, and the verdict is indefinite and uncertain, in that it fails to specify of which degree the conviction is had. In thiscase there can be no trouble, because appellant could not havebeen convicted of aggravated assault with the punishment assessedagainst him. The punishment imposed by the jury in their verdictapplies alone to the charge of disfiguring. It could *Page 164 not possibly apply to aggravated assault. Had the jury found the defendant guilty and assessed a pecuniary fine only, the trouble would have been serious, because they could convict of aggravated assault with a fine not less than $25 nor more than $1,000, or in an assault to disfigure, the jury could also impose a pecuniary fine not to exceed $1,000, or they could convict with a penitentiary punishment. In this case, as shown by the verdict, appellant was allotted two years in the penitentiary. As beforestated, this could not under any circumstances be imputed toaggravated assault as a punishment. It could only apply to thecharge of disfiguring. We are, therefore, of opinion that theverdict is sufficiently plain and definite and unambiguous toshow clearly the purpose and intent of the jury, and is notviolative of the statute."
See, further: Carpenter v. State, 68 Tex.Crim. Rep., 153 S.W. Rep., 883; Craig v. State, 62 Tex.Crim. Rep.; Burton v. State, 62 Tex.Crim. Rep.; Alsup v. State,69 Tex. Crim. 117, 153 S.W. Rep., 628; Noland v. State,63 Tex. Crim. 275; Essery v. State, 72 Tex.Crim. Rep., 163 S.W. Rep., 17, 23-4.
Possibly under some of the early decisions of this court this verdict might have been held bad, but certainly not since the decision in the McGee case, supra. Judge White in sec. 907 of his Ann. Procedure, lays down some of the rules for construing verdicts. We will state some of them: Verdicts are to have a reasonable intendment and construction and are not to be avoided, unless some necessity originating from doubt of their import. In construing a verdict the object is to arrive at the meaning of the jury. Where the jury have clearly expressed an intention to find an accused guilty as charged in the indictment and to assess his punishment in terms of the law, the verdict is sufficient. Technical objections to verdicts for want of form are to be disregarded. Technical and unsubstantial objections to a verdict will not be considered in determining its sufficiency. Where the sense of a verdict is clear it is to be reasonably construed and neither incorrect orthography nor ungrammatical language will render it illegal or void. Misspelling does not vitiate a verdict when no doubt can be entertained as to the words intended, or as to their meaning. The doctrine of idem sonans applies to and governs verdicts. It must always be presumed that the jury had expressed their finding with reference to the charge of the court, unless they also state something which shows that such was not their intention. A verdict is sufficient if the judgment properly rendered on it, will bar another prosecution for the same offense. He cites various decisions of this court which establish the rules he announces.
In sec. 897, he gives a large number of defective verdicts that were held sufficient. And in sec. 903, he gives a large number of verdicts, assessing the punishment, which were held sufficient.
Appellant cites us only to the cases of Aycock v. State,55 Tex. Crim. 142; Bowen v. State, 28 Texas Crim. App., 498, and Evans v. State, 57 Tex.Crim. Rep.. We regard neither of these cases in point. In the Aycock case the Reporter states that the appeal was *Page 165 from a conviction of aggravated assault with a fine of $250. Judge Brooks, in the opinion, says "appellant was convicted of aggravated assault and his punishment assessed at a fine of $250." He discusses and reverses the case solely because of the court's charge on self-defense. The report of the case does not disclose whether the charge submitted only aggravated assault, or both that and simple assault. All he says about the verdict is that appellant claims it is indefinite in not stating that they found him guilty of aggravated assault and, he says, "upon another trial the verdict should respond in this respect to the information. If the jury find him guilty of aggravated assault, they should so state; if of simple assault, they should so state." This by no means held the verdict in that case fatally defective. In the Bowen case, supra, the court reversed the case because of an insufficient information solely. The information attempted to charge aggravated assault and battery. The report of the case does not indicate whether the court submitted that alone to the jury or that and simple assault, too. All the court says about the verdict is that it "would not determine the sufficiency of the verdict further than to say that if it was the intention of the jury to find the defendant guilty of simple assault only, the verdict should have so specified." In the Evans case, supra, the court did not discuss the verdict. It simply discussed the charge in instructing the jury how to find a verdict, and the court, after quoting the charge, says: "The objection to saidinstruction is that it does not tell the jury to find the grade of the offense and if they found him guilty of simple assault to so state in their verdict." Then the opinion says that the court, with unbroken uniformity, has held that the jury must find the grade of the offense. As we state, the court was not discussing the insufficiency of the verdict but the insufficiency of the charge of the court; but Judge Brooks was certainly mistaken in holding that the court had, with unbroken uniformity, held that the jury must find the grade of the offense, for the contrary is true, if aggravated assault alone was submitted by the charge, or simple assault alone was submitted. The decisions of this court are very numerous to the effect that in either event, it would be unnecessary to find the grade. We deem it unnecessary to collate these authorities.
As was said by Judge Davidson of the verdict in the Lee case, so we say of the verdict in this case, — the punishment imposed by the jury in their verdict applies alone to murder. It could not possibly apply to manslaughter; and, as he repeated therein, the punishment assessed in this case, — twenty years in the penitentiary, — could not, under any circumstances, be imputed to manslaughter as a punishment. It could only apply to the charge of murder. The verdict is sufficiently plain and definite and unambiguous to show clearly the purpose and intent of the jury was to find the appellant guilty of murder and not to find him guilty of manslaughter.
Appellant still contends that the letter from Mrs. Black to her husband, — Ira Black, deceased, was inadmissible for impeachment purposes. He bases his contention on two grounds, — one, that it was written in *Page 166 his absence and without his knowledge and was an attempt to impeach Mrs. Black upon a wholly immaterial and collateral matter; two, that if admissible for impeachment, then it was erroneously admitted, because the State failed to lay any predicate for its introduction. He also still contends Mrs. Black could not be impeached by Misses Vandiver and Sewell and Mr. and Mrs. Arnesman, as she was. We will discuss these matters together.
Most assuredly appellant and his attorneys believed that it was very material for him to show that the deceased was most cruel to, and on at least two occasions, made most serious threats to do his wife great violence; that on one occasion he threatened to hit her over the head with a black snake whip, and on another, to hit her over the head with a gun, and on these grounds he had her to bring suit against her husband for a divorce, which, under the statute, from her standpoint, must have been such cruel treatment as to render their living together insupportable. This conduct of deceased, if true, at least from his standpoint, would have justified him to have protected her from her husband. He had his daughter to testify on this trial to this cruel treatment by her deceased husband. He also had his wife to testify that their daughter told her of this cruel treatment, and he himself also testified that his daughter had so told him. It may be and perhaps is, that the jury gave some credence to this testimony and that it materially lessened the penalty they otherwise would have inflicted upon him. To show how material he thought it was and how good a parent he was to protect his daughter from this cruel person, her husband, he told Mr. Pat Smith, just a few days after deceased and his daughter separated, when he first heard from her of this supposed cruel treatment, and when Mr. Smith, as he swore, remarked to Mr. Roberts that the boy (Ira Black) would go back, — that is, he and his wife would go together again, Mr. Roberts said: "No, they won't." Smith said "they are children, they will be back together in three months." Roberts said "no, they won't; I will die before they will go back together. I am a minister and I do not want any trouble, but I will take my knife and cut my way through before they shall live together." He had his knife, the one with which he afterwards brutally slew his son-in-law, in his hand, open and whittling at the time.
Just after deceased had tried to get his wife to go with him from the arbor, when appellant came around to where she was and she was pleading with him to let her go to her husband, Miss Floy Sewell swore, — he said to her, "Pauline, you are not going; I will kill him before tomorrow night if you go with him; I will cut his throat; you are not going." Miss Mary Key swore that appellant said to Pauline at this time, "I will kill him if you go." Miss Era Teague swore that at this time Pauline was begging her father to let her go to her husband and kind of moved her body and said, "Papa, I am going," and he caught her by the shoulder with his left hand and kind of jerked her down to him and said, "Pauline, you are not going; if you go, I will kill him." *Page 167
Mr. John Campbell, Jr., testified that appellant then forcibly took his daughter, Pauline, from the arbor to the wagon some hundred yards or more distant, and that while he was thus forcibly taking her along, she said to him, "Papa, let me go to him, he is my darling husband," and he replied, "Come on, let's go to the wagon, you can not," and while he was still forcing her along, she said, "Papa, turn me loose, let me go, he is my husband"; he replied, "No, you can't, let's go to the wagon."
Mr. Auffil testified that after appellant got Pauline to his wagon that he went up to where they were, spoke to appellant, and he heard either Pauline or Mrs. Roberts say, "He is coming." Roberts said in reply to that statement, "If he comes after you, he will never come after another woman," and at that time Roberts took out his knife and opened it; that he then heard Black say, "Come on, Pauline."
At this time, as we understand from the statement of facts, — as Mr. Goza swore, — Roberts asked Black what he had come back there for and Black said that he had come back after his wife and that was all; that Black then said to his wife, "Pauline, you wrote me a letter to come after you and I have got that letter in my pocket, and I am here." Roberts asked Pauline if she wrote him that letter and she said she did. Roberts said. "Well, you can't get her."
Several witnesses testified in substance that immediately after appellant had cut deceased's throat and stabbed him to the heart, while deceased's wife was down over him bewailing the tragedy and blaming her father therewith and therefor, that he said, in substance, as shown by the court's qualification to his bill in the original petition, that he had subjected himself to the persecution of the world for the protection of his family and that she, Mrs. Black, was a part of his family, and commanded her to hush, that he had heard enough from her. Even after this, when appellant had gone to his home and his brother preachers came to see him on the same night of the tragedy, he said to Reverend Mr. Hill, "I have laid myself liable to the law and my neck may break, but what I have done, I have done for the protection of my family," so swore Mr. Hill. Reverend Mr. Davis swore that while Mrs. Black was at the body of her slain husband, immediately after her father had killed him, she said to Mr. Roberts that he was the cause of the whole trouble and she would never love him any more. Mr. Roberts told her to hush, that he had taken the persecution of the world and did not intend to take any more from his family; that he also went to Mr. Roberts' house that night and saw him there and that Roberts said to him, as he had said to Reverend Mr. Hill, that he had done what he did for the protection of his family and that he would stand by what he had done; that he might be hanged or go to prison. Mr. Davis also further testified that sometime before the tragedy, when Mr. Roberts was talking to him about deceased, he said that if he were to kill the deceased he believed he would get out somewhere; that he had already done enough. However, that he didn't intend to harm him unless he had it to do.
From these brief extracts from the statement of facts, as well as a *Page 168 great deal more along the same line, which we have not stated, it is clear and certain that appellant made the point clear and strong that in killing the deceased he was protecting his family, — especially, his daughter and preventing her husband from getting her, whom he had her to testify, was guilty of said cruel treatment towards her. The State, for the purpose of impeaching Mrs. Black, whose testimony was the basis of appellant's whole claim along this line, laid the predicate to impeach her by asking her, in effect, that if on the very day when she brought the divorce suit against her husband on the alleged cruel treatment to which she testified, if she did not say to Mr. and Mrs. Arnesman that if her father made her get a divorce and they sent her husband to the penitentiary that she would wait till he got out and came back and she would marry him; that she loved him and he always treated her right and that she had rather live with him walking up and down the public road than to stay at home. She denied making this statement. The Arnesmans swore she did make it to them. Her statement to them was practically the direct reverse of what she swore as to deceased's cruel treatment of her on this trial. Again, she swore on this trial that her father did not make her sue for divorce; that she brought the suit of her own accord. The State asked her if she didn't tell Miss Etta Sewell just a few days before the tragedy that her father had made her sue for divorce, and she denied it. Miss Sewell testified she did so tell her. She was asked by the State, and the predicate was laid, if she didn't write said letter to her husband just within two days before her father killed him. She first attempted to deny writing the letter, claiming that Mrs. and Miss Vandiver were the inspirers of the letter. The letter was clearly proven by the Vandivers as having been written by Mrs. Black. In the letter she said to her husband: "My Darling Husband: I am feeling fine and dandy, how are you? I wish that I could see you and be with you. I have been attending church at Pleasant Ridge this week, and wish you could be there. Ira, there is one thing that I want to ask you, why did you leave me? Do you blame me or papa? If you blame me, I want to apologize. I wish I could see you. I am willing to live with you anywhere, and I am sure not afraid to go with you anywhere. I am attending church at Pleasant Ridge, and if you want me to come and live with you, you can come for me, and get Floyd Wagner to help you, and we can get away before papa finds it out. Annie Vandiver said that she would help us. I am at Mrs. Vandiver's writing this letter, for my folks are watching me like everything, life is so miserable for me at home without you, and oh, how I long for one of your sweet kisses like you used to give me. I am addressing this letter to Mark Black because I am afraid that Sir. Wilson, the mail carrier will tell papa if I address it to you. (Signed) Your wife Pauline." The letter is in direct conflict with her testimony, showing in effect, the reverse of her claimed cruel treatment by her husband to which she testified on this trial. As stated in the original opinion all this evidence was clearly admissible in impeaching her on a material issue in the case and all the predicates, and *Page 169 every predicate necessary, or proper to be laid, was clearly done by the State. And the evidence as well as the court's qualification to the bills of exception shows that her father knew that she had written that letter before he killed the deceased.
Neither can there be any question but that the testimony objected to and shown by appellant's several bills of exceptions to what deceased's wife said, over the body of her husband, immediately after her father killed him, to her father, was admissible as res gestae. Appellant cites again, in his motion for rehearing on this subject, substantially all the same authorities cited in his original brief on this question. We have considered them and they have no application to this question. Those decisions held that the testimony in these cases was not admissible because it was not res gestae and because what was said and done was neither in the presence nor hearing of the appellants, or some such like state of facts. In addition to the cases cited on this point in the original opinion, we cite Hardin v. State, 57 Tex.Crim. Rep..
There are but two other questions we will notice. Appellant specially stresses them. One is, he still claims that this part: "And if from all the evidence you believe beyond a reasonable doubt that the deceased, Ira Black, did not draw his pistol and did not make any motion or gesture with his hand indicating an immediate intention to draw said pistol before the defendant started at him with his knife, and that there was no danger or reasonable appearance of danger to the defendant, judged from his standpoint, at the time the defendant started at the deceased with his knife, then you are instructed that the defendant would not be acting in self-defense," of the court's charge, placed the burden of proof upon him to prove his plea of self-defense beyond a reasonable doubt. He not only quotes this charge and makes this contention, but in order to emphasize to us the claimed error, he underscores the whole of the charge above quoted.
We think it too clear for argument that appellant has entirely misapprehended this charge and the effect of it. As shown in the original opinion, the trial court, in the charge, completely and fully, and correctly submitted self-defense, both without threats and with threats, in such language as he did not then and does not now complain of in the slightest way. The part of subdivision 13 of the court's charge above copied does not in any way place the burden upon appellant to prove anything about his self-defense, but it plainly and specifically tells the jury that if they believe from all the evidence, beyond a reasonable doubt, the certain facts recited therein, then appellant would have noself-defense. Appellant himself and his wife and daughter testified to a state of facts as submitted by the court in said charges 10, 11 and 12, which, if true, would unquestionably raise the question and at least have a tendency to show that he killed the deceased in self-defense. Then the court tells the jury in the charge above complained of that if these claimed facts werenot true, and they believed beyond a reasonable doubt that theywere not true, then he would have no self-defense. The State *Page 170 introduced some six eyewitnesses who saw and heard what was done and said by the deceased at the time and just before appellant killed him. Their testimony, without question, if believed, would show that what appellant and his wife and daughter had testified, showing self-defense, was positively untrue and this is all the court told the jury. The case of Lyons v. State, 71 Tex. Crim. 189, 159 S.W. Rep., 1070, and Castro v. State,66 Tex. Crim. 282, 146 S.W. Rep., 553, have no application. Neither of these cases, nor any other, could be construed to sustain appellant in his contention.
This brings us to what we conclude must be appellant's point most strenuously insisted upon as this court's error in the original opinion and that is, holding that his wife could be impeached. His proposition on this question is: That this court erred "in holding that the testimony of Mrs. Ollie Roberts was admissible, because the record, the whole record, the undisputedrecord, and the emphatic record shows that the testimony given by Mrs. Ollie Roberts with reference to what appellant's wife, Mrs. J.W. Roberts, said to her in the home of the appellant, was in the absence of the appellant. That the appellant did not know of, or consent to such conversation and it was only hearsay and was testimony brought out by the State which had not been brought out, referred to or thought of by the appellant while his wife was testifying in his behalf on her direct examination." (We have given his italics.) In support of his contention he cites the court to art. 795, C.C.P.; Johnson v. State, 66 Tex. Crim. 586, 148 S.W. Rep., 328; Yeiral v. State, 56 Tex. Crim. 267; Hobbs v. State, 53 Tex.Crim. Rep.; Young v. State,59 Tex. Crim. 267; Hobbs v. State, 53 Tex.Crim. Rep.; Young v. State, 59 Tex.Crim. Rep.; Brock v. State,44 Tex. Crim. 335; Merritt v. State, 39 Tex.Crim. Rep.; Hamilton v. State, 36 Tex.Crim. Rep., and Hoover v. State, 35 Tex.Crim. Rep.. All these cases were cited and the statute called attention to in his original brief, except the case of Hamilton v. State, he cites that now in addition. His new attorneys cite three other cases. Then we take it, in order that this court might not overlook what it said in the original opinion, he not only underscores but puts in capital letters this much of the original opinion: "That the witness is the wife of the appellant can make no difference. Her bias and prejudice and the extent of it can be shown the same as any other witness when she has been introduced and testifies in behalf of her husband." Apparently he thinks this language was inadvertently used. On the contrary, this court, in using the language, did so advisedly, purposely and deliberately. What it said is the law, has always been the law of this State and no decision holds to the contrary. After calling special attention to the cases of Johnson, Yeiral, Hamilton and Hoover, and quoting excerpts from the latter two, he then asks: "Does this court mean to hold that the State can on cross-examination of the wife, bring out matters not inquired about on her direct examination, and then contradict her by the testimony of other witnesses? If so, don't you think *Page 171 such holding is in conflict with the statute, the Hoover case, the Hamilton case, and many others? If you so hold, are you overruling all the law on this question?"
We have stated these matters, shown by appellant's motion for rehearing herein so that his contention and alarm can be clearly understood. In view of this, we will discuss the question a little more than we did in the original opinion.
The extent to which the wife of an accused may be cross-examined under our statute has been discussed and decided a great many times by this court. It is very frequently before us. While it may not be before us weekly during every term, it is many times before us at every term. It has been so many times examined by us and re-examined that we think we are somewhat familiar with the subject and the decisions and the statute.
The law prohibiting hearsay evidence has no application whatever to this question in this case.
Every text-book writer on the subject, without any exception, holds that to show prejudice, bias, animus, hostility and interest of any witness is strictly cross-examination. We, of course, can't undertake to copy, nor cite all the text-book writers. In the very recent work (1914) of 5 Jones on Evidence, section 822, p. 172, he says: "The general rule limiting the cross-examination to the matters elicited in the examination in chief does not exclude questions tending to discredit or impeach the witness, or those designed to show his interest, prejudice or motives, or to test his accuracy, intelligence and means of knowledge."
In section 828, he says: "Although there has been more or less conflict of opinion upon the subject, the rule is now well settled that questions, on cross-examination, which tend to impeach the impartiality of the witness are not irrevelant to the issue in the sense that the cross-examiner is concluded by the answer. It is elementary law, supported by all authority, that the State of mind of a witness as to his bias or prejudice, his interests involved, his hostility or friendship toward the parties, are always proper matters for investigation, in order that truth may prevail and falsehood find its proper level. If the inner workings of a witness' mind are actuating his testimony, and the workings of that mind are brought forth to the light and held up in full view before the jury, results will be obtained much more in accord with truth and justice than though the witness' testimony is weighed and measured by his words alone. `It is always competent to show that a witness is hostile to the party against whom he is called; that he has threatened revenge, or that a quarrel exists between them. A jury would scrutinize more closely and doubtingly the evidence of a hostile than that of an indifferent or friendly witness. Hence, it is always competent to show the relations which exist between the witness and the party against, as well as the one for whom he is called.' If the witness denies his hostility or bias, this may be proved by other witnesses. The cross-examination would be of little value if the witness could not be freely interrogated *Page 172 as to his motives, bias and interest, or as to his conduct as connected with the parties, or the cause of action; and there would be little safety in judicial proceedings if an unscrupulous witness could conclude the adverse party by his statements denying his prejudice or interest in the controversy. And generally the moving circumstances which might impel the witness to swear falsely may form the subject of inquiry."
To the same effect see Underhill on Crim. Ev., sec. 248; 1 Whart. Crim. Ev., sec. 477; 3 Chamberlyn, sec. 1785; 7 Ency. of Ev., p. 407; 2 Wigmore on Ev., sec. 948, et seq. It is needless to cite the other text-books. Some of these authorities discussed the question more elaborately than others.
This question has many times been before and decided by this court. This court, through Judge Davidson, in Earles v. State,64 Tex. Crim. 537, 142 S.W. Rep., 1181, said: "This rule has been followed in subsequent cases. The latest that the writer has noticed is O'Neal v. State, 57 Tex.Crim. Rep., 122 S.W. Rep., 386, where this language was used: `animus, motive or ill will of a prosecuting witness is never a collateral or irrelevant question in a criminal case. The bias or prejudice can thus be shown and is in most cases of great importance, and is always material in order to enable the jury to form a correct judgment as to the credit to which the testimony of the witness is entitled. Rosborough v. State, 21 Texas Crim. App., 672, 1 S.W. Rep., 459; Hart v. State, 15 Texas Crim. App., 202, 49 Am. Rep., 188; Gregory v. State, 48 S.W. Rep., 577; Reddick v. State, 47 S.W. Rep., 993; and for a great number of authorities, see White's Annotated Code Criminal Procedure, sec. 1108.'"
Again this court, through Judge Davidson, in Pope v. State, 143 S.W. Rep., 612, clearly holds to the same effect, citing a large number of decisions of this court so holding. Among other things in that case, Judge Davidson correctly wrote:
"Even when a witness admits his bias or prejudice, the extent of this may be shown. Mason v. State, 7 Texas Crim. App., 623; Magruder v. State, 35 Tex.Crim. Rep., 33 S.W. Rep., 233; Lyon v. State, 42 Tex.Crim. Rep., 61 S.W. Rep., 125.
"Defendant may also prove facts which show motive on the part of the witness to testify against him, or which show that the witness is testifying under circumstances which make it necessary to testify against defendant in order to save himself. Watts v. State, 18 Texas Crim. App., 384. Defendant may also show animus and prejudice on the part of the State's witness towards him and its extent. In such examination great latitude is allowed when the object is to impeach the credit of such witness. Mason v. State, 7 Texas Crim. App., 623; Blunt v. State, 9 Texas Crim. App., 234; Daffin v. State, 11 Texas Crim. App., 76; Watts v. State, 18 Texas Crim. App., 381; Tow v. State, 22 Texas Crim. App., 175, 2. S.W. Rep., 582; Bennett v. State, 28 Texas Crim. App., 539, 13 S.W. Rep., 1005; Lyon v. State, 42 Tex. Crim. 506, 61 S.W. Rep., 125. Motives which operate upon the mind of a witness *Page 173 when he testifies are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show bias, interest, prejudice, or any other mental state or status, which, fairly construed, might tend to affect his credibility. In addition to the cases already cited see Sager v. State, 11 Texas Crim. App., 110; Bonnard v. State, 25 Texas Crim. App., 173, 7 S.W. Rep., 862, 8 Am. St. Rep., 431; Green v. State, 54 Tex.Crim. Rep., 111 S.W. Rep., 933; Gelber v. State,56 Tex. Crim. 460, 120 S.W. Rep., 863. These extracts and statements are taken from Branch's Criminal Law of Texas, sec. 861. The cases cited by Mr. Branch under these propositions sustain each proposition under which they are cited. The statements of the proposition are so dear, terse, and accurate by Mr. Branch that it is deemed unnecessary to do more than to state the propositions as he has stated them. They are clear, forcible, to the point and accurate." These principles unquestionably apply to a witness against the State, as well and equally so as in favor of an accused. There is no difference. There is not one rule of evidence on this subject in favor of an accused that is not equally applicable in favor of the State. "What is sauce for the goose is sauce for the gander."
But applicant claims that the Earles and Pope cases, supra, are not in point, because they do "not refer to the testimony of the appellant's wife." His contention seems to be that there was a sanctity about his wife that permitted her to testify falsely (if she did) under the cloak of testifying to the truth and to testify with the very greatest animus against the State and the deceased (if she did) under the cloak that she had the kindest feeling towards the deceased, and that she was perfectly willing for him to come back to her home for her daughter, and that she never said anything harsh or unkind about him, and did not tell Mrs. Ollie Roberts that if she were her husband (appellant) she would kill the deceased, and that the State could not show her very great hostility and animosity against the deceased and against the State's case by her. Such is not the law by the statute, nor under any decision of this court, but on the contrary this court and the Supreme Court, when it had criminal jurisdiction, time and again have held that her true status could be shown.
The first case we have been able to find where appellant's contention was first made and decided against him in this State is Creamer v. State, 34 Tex. 173, wherein the Supreme Court 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 *Page 174 `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 motives, his inclination, and prejudices, his means of obtaining correct and certain knowledge of the facts to which he bears testimony, the manner in which he had 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 on 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 put 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 case has many times been cited and approved by the Supreme Court and by this court. It has never been overruled, qualified or modified. It is unquestionably the law of this State. In Jones v. State, 38 Tex.Crim. Rep., on this very point this court said: "Of course, everything which is legitimate for the purpose of testing her knowledge of the facts sworn to, her bias, herprejudice, in fact any matter that goes legitimately to discredither, is admissible on cross-examination."
From the statute and the decisions of this court and the Supreme Court there can be no question but that the rule is 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 and impeachment just like any other witness, save and except, that new incriminating evidence can not be brought out from her against the accused, nor can wholly immaterial matter be brought out for impeachment of her any more than it can be from any other witness. That would not be cross-examination. We collate and cite only some of the cases. Swanney v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 548; Reagan v. State, 70 Tex.Crim. Rep., 157 S.W. Rep., 483; Smith v. State, 44 S.W. Rep., 520; Johnson v. State,72 Tex. Crim. 387, 162 S.W. Rep., 512; Cameron v. State,69 Tex. Crim. 439, 153 S.W. Rep., 868; Ward v. State,70 Tex. Crim. 393, 159 S.W. Rep., 272; Northcutt v. State,70 Tex. Crim. 577, 158 S.W. Rep., 1004; Perry v. State, 153 S.W. Rep., 138; Link v. State, 73 Tex.Crim. Rep., 164 S.W. Rep., 987; Taylor v. State, 167 S.W. Rep., 56; Shelton v. State,34 Tex. 663; Hampton v. State, 45 Tex. 154; *Page 175 Dobbs v. State, 54 Tex.Crim. Rep.; Exon v. State,33 Tex. Crim. 461; Buchanan v. State, 41 Tex.Crim. Rep.; Brown v. State, 61 Tex.Crim. Rep.; Young v. State,54 Tex. Crim. 417; Crews v. State, 34 Tex.Crim. Rep.; Red v. State, 39 Tex.Crim. Rep.. See also Tow v. State, 22 Texas Crim. App., 175; Burnett v. State, 53 Tex. Crim. 515; Renn v. State, 64 Texas Crim. App., 639, 143 S.W. Rep., 167; Burmam v. State, 67 Tex.Crim. Rep., 148 S.W. Rep., 757; Clark v. State, 43 S.W. Rep., 522; Burnaman v. State,70 Tex. Crim. 361, 159 S.W. Rep., 244; Sue v. State, 52 Tex. Crim. 122; People v. Brooks, 131 N.Y. 321; 30 N.E. 189; Brink v. Stratton, 176 N.Y. 150, 68 N.E. 148; Cockrell v. State,60 Tex. Crim. 124; Porch v. State, 51 Tex.Crim. Rep.; Porch v. State, 50 Tex.Crim. Rep.; Bonnard v. State, 25 Texas Crim. App., 173; Trinity, etc., Co. v. Denham, 29 S.W. Rep., 553; People v. Mallon, 116 A.D. Div., 425; 101 N.Y. Supp., 514; People v. Mallon, 189 N.Y. 520; Morgan v. Wood, 24 Misc Rep., 739.
In each of the cases cited by appellant the evidence therein held inadmissible was so held on one or the other of two grounds, — first, that by the cross-examination wholly new incriminating evidence was brought out by the State from the wife; or, second, wholly new immaterial and irrelevant matter was brought out solely for impeachment purposes. We think it unnecessary to take up each of these cases and show this. A casual or careful reading of the cases will show it.
Appellant, for the first time, in his motion for rehearing claims the court erred in not limiting Mrs. Ollie Roberts' testimony to impeachment purposes. He did not make any such objection to the court's charge when it was submitted to him for that purpose, nor did he ask any such charge, nor did he make such complaint in his motion for new trial. Clearly it is too late now to make it. Act April 5, 1913, amending arts. 735 and others. Besides, the evidence could not have been used by the jury for anything but impeachment, and it was unnecessary to so charge. Branch's Crim. Law, secs. 367 and 873, subd. 3.
The motion for rehearing is overruled.
Overruled.