Appellant was prosecuted and convicted of the offense of having carnal knowledge of his stepdaughter, Miss Ollie Walston, and his punishment assessed at five years confinement in the penitentiary.
Appellant earnestly insists that the testimony of the prosecuting witness is not sufficiently corroborated to sustain the conviction. We have carefully reviewed the testimony. Her testimony makes a clear case, and we are of the opinion that the testimony of Dr. Stone, who says he sold the appellant the medicine which the prosecuting witness says appellant delivered to her to produce an abortion and miscarriage, the fact that he attempted to commit suicide, as he said he told her he would if she told about the matter, and the conversation testified to by the witness, Arthur Walston, would support the verdict, although it would be more satisfactory if the testimony would show that in fact the medicine sold by Dr. Stone to appellant and by him delivered to prosecuting witness, was in fact calculated to produce a miscarriage. However, we do not think the testimony of Mrs. Ella Vickers, the wife of appellant, ought to have been admitted in evidence. It is true that at the time she testified she had been divorced, but the matter in regard to which she testified took place while she was the wife of appellant. It is also true that the matters in regard to which she testified on direct examination might be said to be collateral matters, but the defendant's theory was, that there was a collusion between Mrs. Vickers and her two children to run appellant off, and the defendant proved that subsequent to the separation Mrs. Vickers had deeded Arthur Walston certain lands, and intended to deed the prosecuting witness certain lands. This was introduced to affect their credit as witnesses. The testimony of Mrs. Vickers would show there was no such agreement, and the land, although in appellant's name and purchased after his marriage, was in fact paid for with funds belonging to the community estate of her first marriage, and therefore it was proper for her to make the deeds. This testimony was introduced to strengthen the testimony of the two main witnesses for the State, and is it permissible to prove by the wife facts which will support the witnesses against her husband? Article 775 of the *Page 630 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." And Article 774 provides that this inhibition continues after the marriage relation ceases as to matters taking place during the married relation. In Sec. 983 of White's Ann. Code of Crim. Proc. will be found a long list of authorities, which hold that Mrs. Vickers should not have been permitted to testify in this case. The State had an object and purpose in introducing her as a witness, and we can not now be permitted to say that her testimony was immaterial, and therefore no ground for reversal. In fact, the purpose is plainly manifest, which was to strengthen the testimony of Ollie and Arthur Walston, and on these two witnesses the State must rely for a conviction.
Again, it appears that appellant had been married prior to his marriage to the mother of the prosecuting witness, the present Mrs. Vickers. There is no evidence that the former Mrs. Vickers was dead or appellant had secured a divorce from her. Where it affirmatively appears that the defendant had been married prior to the marriage to the mother of the prosecuting witness in an incest case, it should also affirmatively appear that the first marriage had been legally dissolved by death or otherwise. (McGrew v. State, 13 Texas Crim. App., 340.)
There was no error in excluding what Arthur Walston told defendant about another might be the father of the child of the prosecuting witness. What Arthur Walston's opinion may have been in the premises would not be legitimate testimony. Neither do the other bills in regard to admitting testimony present any error.
In bill No. 5 it is shown that W.H. Nunn in addressing the jury said: "They tell you the prosecuting witness has not been corroborated — they will tell you no one saw the act of intercourse except the two (prosecutrix and defendant). 'Tis true that no one was present at the act of intercourse but these two; 'tis true that Ollie Walston testifies that no one was present when the defendant told her to take the turpentine except herself and the defendant, but gentlemen, she has testified to both of these transactions, and they have not dared to put a witness on the stand to contradict her testimony in any particular." These remarks were excepted to, and if they do not challenge the attention of the jury to the fact that defendant had not testified, we are unable to understand the English language. Prosecuting officers should not thus seek to indirectly call the attention of the jury to the fact that a defendant has not testified in the case. This is a right given in law, but he is not bound to avail himself of that privilege, and if he is willing to rest his case on the weakness of the State's case he has a right to do so.
The court did not err in refusing to quash the indictment. The indictment is drawn in terms frequently approved by this court. *Page 631
There are many assignments in the motion for new trial, and we have carefully reviewed each, and none of the others present error, but on account of the errors above pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.