In a forceful motion for rehearing and oral argument, appellant insists that prejudicial error is revealed by Bill of Exceptions No. 7 which was not discussed in the original opinion. From that bill it is made apparent that appellant, while testifying in his own behalf, gave testimony to the effect that he had been a married man for many years; that his wife had been a sufferer and had undergone four major operations; that her health had been bad for years; that there was a necessity for the use by her of whiskey at all times; that physicians had frequently prescribed the use of whiskey for her; that she had been informed by a doctor that corn whiskey would suffice if a better article could not be obtained. It appears that the trial took place some eight months subsequent to the date of the transaction upon which the prosecution rests. While the appellant was testifying as a witness, he was asked by his counsel the following questions:
"Q. What is your wife's nervous condition, if you know?
"A. (Counsel for State): We have sat and listened —. *Page 443
"Court: Objection is sustained to any further examination along this line."
Exception was immediately reserved and the jury retired in order that the further testimony, which was desired, might be ascertained by the court.
"Q. (Appellant's Counsel): State if she is able physically or otherwise, to attend this trial.
"A. No, sir.
"Counsel for State: That is an opinion of his.
"Court: Sustained.
"Q. (Counsel for appellant): State if she is able, physically or otherwise, to attend this trial?
"A. No, sir; she is not.
"Q. (By Counsel for State): Is she now confined to her bed?
"A. Most of the time she is able to be up but not able to do cooking or sweeping.
"Q. Is she confined in bed at this time?
"A. About half of the day.
"Q. Has she been in bed today or do you know?
"A. Yes, sir.
"Q. Has any doctor been waiting on her today?
"A. No, sir.
"Q. How long has it been since you had a doctor with her?
"A. I don't know; it has not been very long.
"Q. Ten days?
"A. Maybe a week."
Upon recalling the jury, the foregoing questions and answers were offered in evidence and excluded by the court upon objection by the State. The nature of the objection is not disclosed. In approving the bill, the court authorized the reproduction of the questions and answers from the stenographer's notes.
In the opinion of the writer, the ruling was wrong, and in the light of the peculiar facts of the case, the exclusion of the proffered testimony was prejudicial. The appellant's defense was two-fold: first, that he was arrested before he had ever transported any whiskey; and second, that knowing where whiskey could be found, he went to the place for the purpose of obtaining some for his wife for medicinal purposes. Upon that issue, the conflict was resolved against him and in favor of the State. According to the State's testimony, the transportation had begun before his arrest, and that issue was resolved against the appellant by the jury. There remained, *Page 444 therefore, but the single question of his purpose in removing the whiskey, that is, whether as medicine for his wife. In support of his theory, he testified to the condition of his wife's health at various times, and from his testimony, it was manifest that she was a most material witness in his behalf upon the vital issue raised by his testimony. She was not present at the trial. His right to explain her absence by relevant testimony is not open to question. The fact that at the time of the trial she was not in a condition to attend it seems obviously an appropriate fact explanatory of her absence. That the failure to produce testimony available to the accused as a circumstance which may be used against him either in argument or in its consideration by the jury, is elementary. See Underhill's Crim. Ev., (3rd Ed.) sec. 45. This principle applies with peculiar emphasis when the absent witness is the wife of the accused. The statute precludes her testifying against the accused, but she may testify in his behalf. It follows, therefore, that in a case disclosing that the wife is in possession of material facts which would corroborate the appellant's testimony and support his defensive theory, the failure to produce her is a potent circumstance against him. In the present case, his defensive theory, supported by his own testimony alone, was one upon which his wife was a most material witness. This was disclosed to the jury, and it was also made evident by the proceedings of the trial that the court regarded her testimony as immaterial and denied the appellant the right to explain her absence by proof of the fact that she was not in a condition to attend the trial. The precedents in this state to the effect that the absence of the wife, who was a material witness as disclosed by the appellant's testimony, is chargeable and usable against him, are emphatic and numerous. See Mercer v. State, 17 Tex.Crim. App. 467; McFadden v. State, 28 Tex.Crim. App. 245; Battles v. State, 53 Tex.Crim. Rep.; Bost v. State, 64 Tex. Crim. 475, and numerous other cases collated by Mr. Branch in his Ann. Tex. P. C., secs. 372 and 373. Many more recent cases might be cited as the subject is one upon which, so far as the writer is aware, there is no conflict of authority.
The fact that the appellant had given testimony as to the condition of his wife at the date of the commission of the alleged offense many months before the trial, is no answer to his claim that he had a right to tell the jury the state of his wife's health at the time of the trial as an excuse for his failure to have her present to corroborate his testimony with reference to her previous physical condition. *Page 445
For the error of the court in excluding the testimony mentioned, a reversal of the judgment is deemed proper. The motion for rehearing is therefore granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.