Attorneys for appellant in their motion for rehearing insist with so much earnestness that we were in error in our original opinion in holding that under certain circumstances the wife of appellant might be impeached by statements made by her before the grand jury we have again examined this question. Our more complete investigation has confirmed us in the correctness of the conclusion we reached formerly, but it has also revealed that our decisions are not in harmony. The cases of Exon v. State,33 Tex. Crim. 469; Young v. State, 54 Tex.Crim. Rep., and Brown v. State, 61 Tex.Crim. Rep. are not in harmony with Johnson v. State, 66 Tex.Crim. Rep., 148 S.W. Rep., 328; Doggett v. State, 86 Tex.Crim. Rep., 215 S.W. Rep., 454 and Turner v. State, 89 Tex.Crim. Rep., 232 S.W. Rep., 801. The Johnson case, supra, makes no reference to the Exon, Young or Brown cases but seems to depart from the doctrine announced therein without dissent. In Perry v. State,69 Tex. Crim. 184, the question was raised but disposed of as being brought forward by insufficient bill. No cases are cited, but to our minds this rather significant language is found in that opinion, "The record does not disclose at whose instance she (the wife) testified on this inquest proceeding, whether introduced by the appellant or by the State." The Doggett case follows the Johnson case. In Turner's case, supra, we followed the Johnson and Doggett *Page 45 cases and in our original opinion in the instant case we expressed the view that where the record shows the wife was taken before the grand jury under process and without the husband's consent the Johnson and Doggett cases announced the correct rule.
Returning to the question directly before us for consideration; there can be no doubt that a wife when called to testify by her husband who is the defendant upon trial, is subject to the same character of cross-examination as any other witness, subject only to the limitation that the cross-examination must be strictly confined to matters pertinent to the examination in chief. The general rule is so stated in Encyclopedia of Evidence, vol. 6, p. 892. Texas cases to this same effect will be found collated in Branch's Criminal Laws of Texas under Section 852.
That the wife may be impeached by proof of contradictory statements to third parties as to material matters inquired about on her direct examination is well established by the authorities of this State. (See Branch's Criminal Law, Section 853, and cases therein cited, and also authorities collated under Section 153 of Branch's Annotated Penal Code.) That the ordinary witness may be impeached by contradictory statements made by him before the grand jury is not an open question. (For authorities collated on this latter proposition see Branch's Crim. Law, Section 871, page 554.) It being settled that a husband or wife may be impeached by showing declarations made by them to a third party which are contrary to their testimony upon the witness stand, if pertinent to the examination in chief, we have been unable, in view of all of our authorities, to reach the conclusion that a husband or wife who testifies before the grand jury voluntarily and at the instance of the spouse who may be under investigation, should not be subject to the same rule of impeachment with reference to contradictory statements made before that body. Certainly they are under no less obligation to speak the truth before the grand jury than when talking to a neighbor or friend on the streets or elsewhere. It is not an instance of the calling of either husband or wife to testify against the other, for if that rule should be followed to its logical conclusion the same objection would prevent the State from proving a contrary declaration made to a third party, because, in a sense, all impeachment evidence is against the party to the detriment of whose interest it is introduced. Indeed, this was the objection urged where the State has sought to prove contradictory statements by the husband or wife to third parties, and the objection held to be untenable. In the instant case the bill of exception fails to show that the wife was brought before the grand jury under process, not at the instance of appellant. It does not in our opinion bring the question within the rule announced in the Johnson and Doggett cases. If a husband accused of crime and under investigation before the grand jury should cause his wife to go before that body to testify to things favorable to him and she should make statements contrary to her testimony afterwards *Page 46 given on the trial which were pertinent to her examination in chief and as to a material matter, it could be urged with little logic, we think, that her contradictory statements made before the grand jury should not be provable to impeach her as in contravention of the statute.
The legal presumption is that the ruling of the trial court was correct unless the bill of exception shows otherwise. Moore v. State, 7 Texas Crim. App. 20; Edgar v. State, 59 Tex. Crim. 256, 127 S.W. Rep., 1053; James v. State, 63 Tex. Crim. 77, 138 S.W. Rep., 612; Harris v. State, 67 Tex. Crim. 251, 148 S.W. Rep., 1074; Ortiz v. State, 68 Tex. Crim. 524, 151 S.W. Rep., 1058; Anderson v. State, 70 Tex. Crim. 594, 157 S.W. Rep., 1197; Zweig v. State, 74 Tex. Crim. 306, 171 S.W. Rep., 751.
The respectful manner in which the motion for rehearing upon this issue has been urged before this court has caused us to make a more thorough investigation of the matter than upon the original hearing, but we have been unable to agree with counsel in their earnest contention.
The motion for rehearing is therefore overruled.
Overruled.