A motion in arrest of judgment, which was overruled, questioned the sufficiency of the indictment upon which defendant was tried. The crime intended to be charged was incest. As set forth in the indictment, the charge is, “that about the first day of October, A. D. 1881, in Robertson county, Texas, and divers other days, both before and after said first day of October, 1881, Daniel Compton, an adult male person, did unlawfully and carnally know one Laura Griffin, a female person, over the age of ten years, the said Laura Griffin then and there being the daughter of Mrs. Sarah Compton, the lawful wife of him the said Daniel Compton, against the peace and dignity of the State.”
In the absence of the specific objection which was urged, we presume that the insufficiency was supposed to exist in the failure to allege with certainty that, at the time the offense was committed, Mrs. Sarah Compton, the mother, was living, and was the lawful wife of defendant. We do not think the objection tenable. It was unnecessary to repeat the words “then and there being,” after the words “the daughter of Mrs. Sarah *274Compton.” As used, they appear to refer as well to the fact that Mrs. Sarah Compton was “then and there” the lawful wife as to the fact that Laura Griffin was “then and there” her daughter, and they apply with equal force to both allegations. (Harris v. The State, 2 Texas Ct. App., 102.) If they apply to both, then the allegation in effect is that Mrs. Sarah Compton was not only the lawful wife, but was then and there living.
In the case of Noble v. The State, 22 Ohio State Reports, 541, it was held that the relation of step-father and step-daughter, within the meaning of the statute against incest, does not exist after the termination of the marriage relation between the stepfather and the step-daughter’s mother; but that an indictment for incest with one’s step-daughter sufficiently describes the relationship of the parties by alleging it to be that of step-father and step-daughter, without setting forth the marriage of the defendant to the mother, or the subsistence of the marriage relation at the time of committing the crime.” (1 Green’s Crim. Law Rep., 662.) Our statutory words “his wife’s daughter” (Penal Code, Art. 330), are, we think, substantially and sufficiently averred in the allegation contained in the indictment, viz., “the said Laura Griffin then and there being the daughter of Mrs. Sarah Compton, the lawful wife of him the said Daniel Compton.” We are of opinion the indictment is sufficient to charge the statutory crime of incest, and the court committed no error in overruling the motion in arrest of judgment, so far as based upon objections to it.
On the trial Mrs. Compton, wife of defendant, was placed upon the stand by the prosecution as a witness against him. She was objected to by defendant as incompetent for the purpose under our statute, which provides that “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.” (Code Crim. Proc., Art. 735.) This objection was overruled, and the witness permitted to testify. In his ruling the learned judge doubtless was guided and controlled by two decisions of this court, the cases of Morrill v. The State, 5 Texas Ct. App., 447, and Rowland v. The State, 9 Texas Ct. App., 277, to the effect that adultery of one of the parties to the marriage contract was in its nature such a crime committed against the other as to render that other competent to testify against the offending party. If this doctrine was correct, then it would follow' inevitably that in *275a case of incest such testimony would be undoubtedly competent a fortiori, because to the wrong of adultery is added the double wrong and injury that it is an outrage upon nature in its dearest and tenderest relations, as well as a crime against humanity itself.
The question is, do the decisions in Morrill’s and Rowland’s cases lay down the correct rule, or is the doctrine as enunciated a strained and unwarranted construction of the language of the statute supra? The exception is that they are competent to testify in “prosecutions for an offense committed by one against the other.” We are aware that the cases of Morrill and Rowland are not without authority to support them. Notably as in Bennett v. The State, 31 Iowa, 24, cited in Morrill’s case, and in Tilton v. Beecher, a celebrated case of crim. con., wherein the plaintiff was offered as a witness to prove his wife’s adultery, and after elaborate argument and citation of authority the court held he was entitled to testify. (See note 6 to Whart. Crim. Ev., sec. 396.) Again, in Sloan v. The People, a case recently decided by the Supreme Court of Iowa, it was held that the first wife is a competent witness against her husband who has been indicted and is upon trial for bigamy, it being a crime committed against her. (3 Crim. Law Mag., 285.)
A more thorough investigation and consideration of the subject has, however, led us to conclude that the great weight of authority, English and American, is against the doctrine of the Morrill and Rowland cases, and appears to be more consonant with the reason and policy of the law. Before those decisions were rendered (a fact which seems to have been overlooked, at all events it is not noticed or alluded to in either of those opinions), our Supreme Court held, in construing this statute, that the wife could not testify against her husband upon trial for theft of her property; and the language used in reference to the meaning of the statute was that “its plain and obvious import is to limit the permission given to the husband and wife to testify against each other to prosecutions for personal offenses by one against the other.” (Overton v. The State, 43 Texas, 616.)
Mr. Russell, in his work on Crimes, says: “ The wife is also admitted as a witness against her husband ex necessitate in a prosecution of him for offenses against her person. * * * * But this rule seems to be confined to cases where the charge affects the liberty or the person of the wife.” (Sharswood’s Russell, 3 vol., p. 984.)
*276Mr. Wharton says: “Marriage, however, being proved,- neither husband nor wife is competent at common law to testify in a suit for or against the other. Thus the husband is incompetent in a prosecution against his wife for her adultery, and so, mutatis mutandis, is the wife against the husband; but if the paramour be prosecuted singly, it is held that the restriction does not continue in force.” (Whart.. Crim. Ev., sec. 390.) Again he says: “Where, however, violence has been committed on the person of the wife by the husband she is competent to prove such violence. Hence, on the trial of a man for the murder of his wife, her dying declarations are evidence against him. And in all cases of personal injuries committed by the husband or wife against each other the injured party is an admissible witness against the other. * * * * * And it is plain that in cases not involving personal injury the wife cannot at common law be called against her husband.” (Sec. 392.)
And again: “The reason for the exclusion of husband, and wife when called for or against each other being social policy and not interest, statutes abolishing incompetency resting on interest do not remove the common law incompetency of husband and wife for or against the other.” (Sec. 400.) In New York it has been held that upon a trial of the husband for bigamy the wife was incompetent to testify against him. (24 New York, Hun., 501; Whart. Crim. Ev., 397.)
Our conclusion is that reason and the weight of authority is against the rule upon the subject as laid down in Morrill v The State and Rowland v. The State, and so those cases are overruled.
We are of opinion that Mrs. Compton was not a competent witness in the prosecution for incest against her husband, and that the objections to her testimony were improperly overruled. Other questions presented not incident to this are not deemed of sufficient importance to require discussion.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered November 18, 1882.