Appellant was charged by indictment with the murder of one Ed Kelly, alleged to have been committed on the 5th day of September, 1906, in Hill County, Texas. He was convicted of manslaughter, and his punishment assessed at four years confinement in the penitentiary.
The facts in brief show that appellant, at the time of the homicide, was a young man slightly past 21 years of age, living with his young wife, and baby a few months old, some four miles east of Itasca on a farm. The deceased was a man some 35 years or more, and was practically a stranger in the community. About a week before the homicide he had been hired by appellant along with O. Leggett, who was also a stranger, to pick cotton. On the day before the homicide appellant went to Itasca, a town nearby on business, leaving the deceased and Leggett at his home with his wife and child. Shortly after he had left home Leggett left also, leaving deceased and appellant's wife at the house. It is claimed by the wife of appellant that the deceased was guilty of gross indignities in the absence of her husband, going to the extent of seizing her in his arms and importuning her to have carnal intercourse with him. Defendant's wife made no report to him of the matter that night on his return, but in view of his announcement of his purpose to go to Itasca again the next morning she remonstrated with him and begged him not to go and leave her with that man (meaning deceased), and in reply to his demand to know why she was afraid of deceased, she stated to him a portion of the insulting conversation with the deceased leading up to his seizure of her; but did not make a full disclosure, for the reason, as stated by her, that this would cause great trouble and sorrow through which she was now passing. However, in view of what his wife already told him, appellant at once discharged deceased, and told him that if he would go into town he would get the money he owed him and pay him for his services. This deceased declined to do, and it was stated he would not wait for his money and immediately left appellant's house, going in an easterly direction. Appellant went on to Itasca, which was situated in a westerly direction from where he lived, and while there purchased a double-barrelled shotgun *Page 73 and some ammunition. While in Itasca he made some inquiry as to what one should do or ought to do to a man who had insulted his wife. Appellant was accompanied home by Watson, his cousin, and Leggett, his employee. When he reached there, as he states, he went to his wife, and told her that he did not believe she had told him all that had occurred the day before; whereupon she broke down, as he says, and through her tears, made a full disclosure of all that had occurred, involving the most reprehensible conduct on the part of the deceased. On receiving this information, appellant went out of the house, mounted a horse that belonged to his cousin Watson, and galloped off in the direction that deceased had gone some hours before, with the purpose, as he declares, of requiring deceased to explain his conduct. He soon found deceased picking cotton in the field of one Morris, and while the testimony is not wholly in agreement, the substantial facts seem to be that, without parley, and probably without warrant, shot the deceased in the field in the cotton row where he was at work. Appellant, however, it should be stated, claims in his testimony that when he came upon deceased, with a view of making inquiry as to his conduct towards his wife, and demanding an explanation of same, that the deceased was looking straight at him and threw his hand behind him, and appellant thought he was going to draw a pistol. Leggett and Watson, the parties with appellant, were each separately indicted as a principal for the murder of deceased. While not intending to comprehend herein every essential fact of the case, the statement above substantially illustrates the situation far enough to make intelligible the issues discussed.
There are three substantial questions raised on the appeal, and which were discussed in oral argument and are clearly presented in the record:
1. It was shown, as stated, that Hence Watson and Oscar Leggett, and the appellant were each separately indicted as principals for the murder of deceased. It was shown that at the January term, 1907, of the District Court of Hill County, and on the thirtieth day of that month appellant filed his motion in writing which was duly sworn to, in which he alleges the pendency of said indictment against Watson and Leggett for the same offense, and that the evidence was insufficient to convict said Watson and Leggett, and that he desired their testimony, and prayed a severance to the end that these defendants be first tried. This motion was granted by the court, and an order entered that Watson be first tried; and that Leggett be next tried, and that both of them should be tried before appellant. It is further shown in the record that on the 8th of April, 1907, when this case was called for trial, that neither Watson nor Leggett had been placed upon trial, nor had their cases been disposed of, but both cases were held pending on the docket. The record further shows that appellant filed an additional motion at that time calling the court's attention to the failure of the State to comply with the order of the court formerly made granting his motion to sever, and in said second motion renewed their former motion for severance, and again prayed the court to have said cases against Watson and *Page 74 Leggett first tried, and finally disposed of before he should be placed upon trial. Thereupon, the county attorney prepared a formal motion in the Watson and Leggett cases, asking an order of nolle prosequi on the ground that the evidence was insufficient to sustain a conviction against them, and asking that said cases be dismissed. Whereupon, the court entered upon the docket, opposite each of said cases the following order: "April the 8th, nolle pros. by State for reasons on file." The record further shows that appellant, by his counsel, objected and protested to the proceedings so had in dismissing said Watson and Leggett cases, because such proceeding was not in compliance with the order of the court made, nor in accordance with appellant's motion to sever, and that said dismissal was not a trial or final disposition of the cases, and contended that they should have been tried or dismissed with a guaranty of immunity from further prosecution, so that appellant could avail himself of the said Watson and Leggett as witnesses, and that he might have them free and untrammeled by any fear of a future prosecution. In this state of the record appellant was compelled to make an announcement of ready or not ready for trial. The record further shows that the State rested its case without having placed either Watson or Leggett upon the witness stand, at which stage of the proceedings appellant filed a motion, asking the court to require the State to place Watson and Leggett on the witness stand and prove by them the facts and circumstances immediately attending the homicide in order that appellant might have the privilege of a cross-examination of said witnesses. This motion was overruled by the court, and neither Watson nor Leggett was introduced by either party, nor were they witnesses in the case at any stage of the proceedings.
Appellant claims that these proceedings were directly in the face of the holding in the case of Puryear v. State,50 Tex. Crim. 454; 17 Texas Ct. Rep. 721. To this contention we accede, and if the rule adopted in the Puryear case should prevail we would not hesitate to reverse the case for the error here assigned. We do not believe, however, that the Puryear case should be followed. We think the reasoning in that case is fallacious and unsound, the conclusion reached unsafe, and the result wholly mischievous. It is directly in the teeth of the decision of this court in the case of Brown v. State,42 Tex. Crim. 176. It is, as we believe, at variance with the letter and spirit of our Code of Criminal Procedure.
Articles 707, 708 and 709 are as follows: "Article 707. When two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit in writing that one or more parties are indicted for an offense growing out of the same transaction for which he is indicted, and that the evidence of such party or parties is material for the defense of the affiant, and that the affiant verily believes that there is not sufficient evidence against the party or parties whose evidence is desired to secure his or their conviction, such party or parties for whose evidence said *Page 75 affidavit is made shall first be tried; and in the event that two or more defendants make such affidavit and cannot agree as to their order of trial, then the presiding judge shall direct the order in which the defendants shall be tried; provided, that the making of such affidavit does not, without other sufficient cause, operate as a continuance to either party.
"Article 708. When a severance is claimed the defendants may agree upon the order in which they are to be tried, but in case of their failure to agree the court shall direct the order of the trial.
"Article 709. The attorney representing the State may at any time, under the rules provided in article 37 dismiss a prosecution as to one or more defendants jointly indicted with others, and the person so discharged may be introduced as a witness by either party."
It will thus be noted that provision is made that where two or more defendants make such affidavit and cannot agree as to the order of trial, then the presiding judge shall direct the order in which the defendants should be tried. It will also be noted that provision is made that the making of such affidavit shall not, without other sufficient cause, operate as a continuance to either party. It is expressly provided (see article 708) that when a severance is claimed the defendants may agree upon the order in which they are to be tried, but in case of their failure to agree, the court shall direct the order of trial. Article 709 provides, that the attorney representing the State may at any time, under the rules provided in article 37, dismiss a prosecution as to one or more defendants jointly indicted with others, and the persons so discharged may be introduced as witnesses by either party. Now, in this case neither of the parties, Watson nor Leggett, were in fact introduced by the appellant. While it might be presumed that they would have testified to facts helpful to him, this is but a presumption. It is possible that if placed upon the witness stand that they might have refused to testify on the ground that their testimony would tend to criminate themselves, but whether they would have done so or not is at most an idle speculation and a chance surmise. To hold that the very fact that a severance was claimed and granted, and that after the prosecution was dismissed against these witnesses, that without offering them, without any effort being made to obtain their testimony by placing them on the witness stand, that appellant is entitled to a reversal for the sole and only reason that the cases had not in fact been tried or immunity granted, is going farther than we are willing to go. If there was any suggestion in the record that the dismissal of the cases was not in good faith, as appears in some of the cases, a different question would be presented, but to uphold in this case appellant's contention on this point is to give him a greater right in respect to the Watson and Leggett cases than either of those defendants themselves had. When their cases were reached, under the law, it lay within the discretion of the county attorney to determine whether he would prosecute the cases or enter a nolle prosequi and such defendant, if he so concluded, would have no just cause for complaint. Shall we give this appellant a greater *Page 76 right in respect to Leggett's case than Leggett had? If the case against Watson be, over his protest, dismissed, shall we say what might be lawfully done over Watson's protest, will be unavailing when another party, appellant in this case, objects? Again, such a holding is opposed to and would stand in the way of a due and proper administration of justice. It can well be understood in this case, even if the county attorney had the most convincing evidence of Watson and Leggett's guilt, that at the time when the cases were called, some witness might be missing whose testimony would be indispensable to their conviction and to the due administration of justice. He might decide for some reason at the moment to dismiss the case. Shall it be said that the hand of the law or chief officers of the State shall be rendered powerless because some other litigant may have a remote interest in the proceeding; that such litigant shall have the direct control and be the presiding genius over the fortunes of the State's prosecutions. How would it work in this case? Neither Watson nor Leggett had been offered as witnesses in the case. We might assume that their testimony is important. Upon another trial it may or may not in fact be offered. Suppose we reverse this case. Let us assume the most charitable view that Watson and Leggett are both innocent. It results that we send this case back to the District Court of Hill County with a message to the judge of that court that he is to go bravely through with the reassembling of the grand jury that they may indict innocent men, for the purpose of having a formal order of acquittal entered to the end that appellant may have the option, which so far he has not chosen to exercise, to offer these codefendants as witnesses on the trial of his case. As we say, we think that the Puryear case is not supported by the intent and true meaning of our statutes. It is against the early decisions of the court. It is illogical in its reasoning and it is evil, and only evil in its results. So believing, we overrule the Puryear case, and uphold and commend the action of the trial court in the matter complained of.
2. It is shown by proper bill of exceptions that shortly after the homicide in this case, an inquest proceeding was held before a justice of the peace, and that on this hearing John T. Morris and Wiley Clair testified, and that their testimony was reduced to writing, sworn to and signed by them. At this hearing appellant and his counsel were personally present, and cross-examined these witnesses. Without setting out their testimony, it may suffice to say that it was material and adverse to appellant. On the trial it was shown that Wiley Clair was in the State of Oklahoma. It was also shown that the witness Morris was in the State of Oklahoma. The State introduced in evidence, over appellant's objection, preserved by proper bill, the written testimony of both these witnesses, Clair and Morris, taken at the inquest. The point here made is, that this testimony was not admissible in any event, for the reason, as contended, that under the Constitution appellant had the right to be confronted on this trial by these witnesses, and that under the puculiar facts of this case, the rule maintained in the Porch case, *Page 77 51 Tex. Crim. 7; 18 Texas Ct. Rep. 761, and other cases ought not to apply, for the reason that, under the peculiar facts of this case, the ground of necessity upon which this testimony is sometimes admitted, does not apply. We do not feel ourselves required to go into this question at length. It can no longer, we think, in this State be an open question that where the testimony of a witness has been reduced to writing, in a regular proceeding, where opportunity for cross-examination had been afforded defendant, and a witness has died or moved beyond the jurisdiction of the State, that on a final trial of the case, this testimony will be admitted. Such testimony was admitted by our Supreme Court many years before the creation of this tribunal in the case of Greenwood v. State, 35 Tex. 587, in 1871. This position has been maintained and upheld by this court, beginning with the case of Black v. State, 1 Texas Crim. App. 368, in an unbroken line of decisions for more than a quarter of a century, and was never seriously questioned until the rendition of the opinion in the Cline case, 36 Tex.Crim. Rep.. While the majority opinion in that case is a magnificent piece of legal reasoning, and shows great research, it is so opposed, not only to the decisions of this court, but practically every court of last resort on the American continent, that we do not believe the temporary departure thus made from the settled rule of construction everywhere among the English speaking people should be an authority seriously regarded. In passing, it may be stated that the ruling in the Greenwood case, the Black case, and in the Porch case, is in accordance with what has been the rule in England since 1654. This, too, is the rule in the Supreme Court of the United States, where the question has often been considered. See Mattox v. State, 156 U.S. 237, and West v. Louisiana, 194 U.S. 258, and under statutes similar to our own has been uniformly so held without a single dissent so far as an examination of the authorities go in any court of last resort in America. So that, without further discussion, we are constrained by the overwhelming weight of authority to hold this contention adverse to appellant.
Nor do we believe that the point made by appellant's counsel and presented with great earnestness and much ingenuity, that a departure from the general rule ought to be made on the ground that, as applied to the facts of this case, the reason for the rule fails. Their contention is, that other witnesses, including P.J. Morris and George Clair were present, and saw, heard and testified to every fact which was testified to and included in the evidence of the absent witnesses, John T. Morris and Wiley Clair, and that, therefore, the testimony could not have been admitted from any supposed reason of necessity as is sometimes said in the decisions. The argument of necessity which is sometimes said to be a basis and ground for the admission of this character of testimony is but another way of saying that such testimony shall be permitted to be introduced on the ground that its exclusion might and would sometimes defeat the ends of justice. We do not feel ourselves at liberty to say just when this reason of necessity ceases. In a controverted case like *Page 78 the one at bar, the mere fact that some one or two witnesses testified to the same state of things as is testified to by the absent witnesses, would, we think, make little or no difference. After all, it must be left to the discretion of the prosecuting officer and of the trial court to say whether in a given case it is deemed necessary or important to have before the trial court the testimony of these absent witnesses. Nor do we think it essential to the admissibility of this testimony that it should be put upon the ground of necessity alone. The assignment is overruled, and the action of the court complained of is sustained.
3. Another important question arises upon the examination of Mrs. Lula Hobbs, the wife of appellant. To the end that this may be fairly presented, we adopt, for the purpose of a discussion, the statement of appellant's contention as found in appellant's brief. They say: "Bill of exceptions number 6, recites that the appellant placed his wife, Lula Hobbs, upon the witness stand in his own behalf, for the purpose only of proving that on the day preceding the homicide the deceased used insulting language, and was guilty of improper conduct toward her, and that on the day of the homicide she communicated these facts to the appellant. No other fact or circumstance was elicited or sought to be elicited from said witness by the appellant. The State on cross-examination proved by appellant's wife that a few moments after the occurrence between the deceased and the said Lula Hobbs, Mrs. George Clair came to the house of appellant, and also that the witness Lula Hobbs went to the house of Mrs. George Clair on the day of the homicide, just a short time before the homicide occurred. Counsel for the State also asked appellant's wife if she did not state to Mrs. Clair in a conversation that just before Mrs. Clair came to her house on the day before, that deceased tried to get smart with her and put his hand on the arm of her chair, and she then got up out of the chair and deceased said, `Good lady, I mean no harm,' and the said Lula Hobbs denied making such statement. Counsel for the State also asked the wife of appellant if she did not say to Mrs. Clair at the latter's house, just a few moments before the killing that the deceased had tried to get smart with her on the preceding day and that she had told her husband, and that they had gone to look for Kelly and that she, the said Lula Hobbs, did not know what was going to happen; and said witness denied making that statement. No objection was made by appellant's counsel to any of these inquiries made of his wife, concerning matters that the appellant had not examined her about; and we rely upon the authority of Brock v. State, 44 Tex.Crim. Rep.; 71 S.W. Rep. 20, to sustain the proposition that this examination was improper, and constitutes reversible error without a bill of exceptions having been reserved at the time. The bill of exceptions now under discussion shows that, after the appellant's wife had denied making these several statements, the State placed the witness, Mrs. George Clair, on the witness stand and proved by her that Mrs. Hobbs did make each of the statements inquired about. The appellant objected to said testimony of Mrs. Clair, because, first, it was an *Page 79 effort to impeach the wife of appellant upon an issue immaterial; second, because the said Lula Hobbs was the wife of appellant and in her direct examination no inquiry was made concerning any visits or conversations between her and Mrs. Clair, and it was in effect making the wife a witness against her husband; and, third, that any statements made by Lula Hobbs in the absence of the defendant, to the effect that her husband had then gone to look for deceased, and that if he found him she did not know what would happen, was hearsay, inadmissible and highly prejudicial to the defendant. All of these objections were overruled and said testimony permitted to go before the jury. Following the authority of the cases of Brock v. State, supra, and Moore v. State, 44 Tex.Crim. Rep.; 75 S.W. Rep. 497, we believe the testimony was not admissible under the doctrine that the wife will not be permitted to testify against her husband." We do not believe that this contention should be upheld, nor that the authority of the Brock case can be invoked successfully. In the Brock case, the wife of the defendant there being tried, was introduced and used as a witness by the State, and the contention was made that under our statute the wife is not a competent witness against the husband in a criminal proceeding of this character with or without his consent; that neither spouse can consent to the other testifying against him in a criminal case except where it is an offense of one aginst the other. Article 774, of the Code of Criminal Procedure, provides: "Neither husband nor wife shall in any case testify as to communications made by one to the other while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense, and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial." Article 775, Code of Criminal Procedure, provides: "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 a criminal prosecution for an offense committed by one against the other." This disqualification of giving adverse testimony against each other rests upon sound grounds and proper policy, and should be upheld with a strong hand, and we can well understand how the court would deprecate and condemn the use of the wife against the husband, or the husband against the wife as was attempted in the Brock case, whether at the time the person being tried objected or did not object, but the case we have here is, as we conceive, very different. Here the wife was offered as a witness in behalf of her husband; her testimony was vital and important, and if true, as the jury seemed from their verdict, to have believed, evidenced such a gross insult and outrage as to reduce to the grade of manslaughter what otherwise might have seemed an unprovoked and cold-blooded murder. She testified in substance and effect that while unprotected in her household, with only the little babe present, the deceased grabbed her, embraced her, and made the direct proposition *Page 80 that she submit her person to his lustful embraces. The accuracy of this statement the State sought to challenge, and to disprove by the fact that her conduct and conversation with the witness, Mrs. Clair, was wholly at variance with the serious condition of affairs which she claimed she had told her husband. The State could not, in the first instance, have offered appellant's wife against him. He was free, however, to introduce her as a witness in his own behalf, and to seek to obtain the utmost possible benefit from her testimony. She could not be made to enlist against her husband, but when she entered the field for him, she is subject to such cross-examination as will fairly test the truthfulness of her testimony. She becomes, as any other witness, in respect at least to the examination that fairly and legitimately tends to test the credibility and accuracy of the testimony which she gives, the subject of cross-examination. This was the limit to which the cross-examination went in this case, and it was restricted within these legitimate bounds. Having offered his wife as a witness in his own behalf, he is to be held to have consented that her credibility might be tested by such reasonable cross-examination as would disclose the truthfulness or inaccuracy of any statement which she makes. Messer v. State, 43 Tex.Crim. Rep.. The only matter about which we have any doubt is a feature of her testimony, which is not so much discussed in the brief by counsel for defendant; and in her statement to the witness, Mrs. Clair, in effect said that her husband had gone to look for the deceased, and she did not know what would happen. A somewhat similar question arose in the case of Skaggs v. State, 31 Tex.Crim. Rep.. In that case the wife of the accused stated in her testimony that she knew her husband was going to kill the deceased. This statement was held to be opinion evidence only, and incompetent for any other purpose, but the error having been cured by the court's withdrawal of the statement from the consideration of the jury, no special attention seems to have been paid to it. In this case reference is had to the case of Drake v. State, 29 Texas Crim. App. 265. In that case while the witness Drake, Jr., was on the witness stand, it was sought to impeach him by inquiring, in substance, that if he did not state to persons named that he knew that his father, the defendant, was going to kill Guinn (the deceased), before he (the witness) left home that morning. This was held not to be a fact or knowledge of a fact, or a material fact about which the witness could be impeached, but was a mere opinion and conclusion, and introduction of the evidence as impeaching testimony was held improper. Here, however, the only extent to which the wife's testimony goes, as shown by the bill, which is much stronger than appears in the statement of facts, is that her husband had gone to look for the deceased, and that she did not know what was going to happen. In other words, it is a mere statement to the witness, Mrs. Clair, having in view her disclosure to her husband, that he was then away from home and that she did not know what the result of the conference would be. If, as the defendant himself testified, his mission was to see the deceased to *Page 81 demand an explanation, this testimony might relate to the result of the explanation so given. In any event, as presented in the record, it is not clear that the testimony was not admissible, and if it should be held that it was not admissible as a mere expression of opinion, it does not on its face or by necessary implication disclose the statement of opinion as to what the appellant meant to do, and is therefore, we believe not material or hurtful even if it be conceded that it should not have been admitted.
We have carefully gone over the entire record. It bears incontestable evidence on every page that the rights of defendant have been well cared for. Whatever our own views or sympathies may be, it is our belief that the appellant has had a fair and impartial trial. The evidence affirms beyond doubt that he took the life of the deceased, and giving him the benefit of the great provocation testified to by his wife, the jury have imposed the lowest penalty, which, under all the facts, they were reasonably justified in doing.
Finding no error in the record, the judgment of the court below is affirmed.
Davidson, Presiding Judge dissents, and will file reasons.
Affirmed.
ON REHEARING. June 6, 1908.