Thomas v. State

Willson, Judge.

This is an appeal from a conviction of the crime of adultery, which conviction was had upon an informa*72tion based upon the affidavit of the husband of the defendant. A motion in arrest of judgment was made and overruled, the ground of the motion being that the husband was not competent to make the affidavit against his wife, and that, therefore, there was no basis for the information.

Article 404 of the Code of Criminal Procedure provides that “An information shall not be presented by the district or county attorney until oath has been made by some credible person, charging the defendant with an offense. The oath shall be reduced to writing and filed with the information.” We construe the words “ credible person,” as used in the article quoted, to mean “a competent as well as a credible witness.” Such has been the construction of the word “credible” by our Supreme Court in the case of attesting witnesses to a will, and the reasons given for so holding in that case apply with equal force here. (Nixon v. Armstrong, 38 Texas, 296.)

Therefore, as the statute, in effect, requires that the information shall be supported by the affidavit of a person competent to testify in the case as a witness, the question that next presents itself is, was the husband a competent witness to testify against the wife upon the charge of adultery ? In Compton v. The State, decided by this court at its last term at Tyler, which was a conviction for the crime of incest, and in which the wife had been permitted to testify against the husband, the precise question here presented was exhaustively discussed and the authorities fully reviewed in an opinion delivered by Presiding Judge White, and the conclusion was arrived at that it was only in the case of an offense committed by one against the other that a husband or wife could be permitted to testify against each other, and that incest, bigamy, adultery, etc., are not offenses “committed by one against the other” within the meaning of the exception in the statute. We think the question is settled by the decision in the Compton case, and settled in accordance with the great weight of authority.

In this case the affidavit, which is the foundation of the information, shows upon its face that it was made by the husband of the defendant. We hold that he was not competent to make the affidavit; that such affidavit will not support an information, and that the court erred in overruling the defendant’s motion in arrest of judgment.

Another error was, we think, committed by the trial court in allowing the prosecution to introduce evidence attacking the *73credibility of its own witness, Horace Field, when this witness had stated nothing in his testimony injurious to the cause of the prosecution. A party introducing a witness can only attack the testimony of such witness when facts are stated by such witness which are injurious to the party introducing him. This is the only modification made by statute of the old rule which denied a party the right to attack the testimony of his own witness. (Code Crim. Proc., Art. 608.)

Because there is no legal affidavit supporting the information, the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.

Opinion delivered April 21, 1883.