This case was affirmed at a former day of this term in an opinion by Judge Prendergast, and as I concur in his opinion he has requested that I write my views on the motion for rehearing.
Appellant in his motion raises but one question, and that is the court erred in permitting the State, in rebuttal, to prove by Mrs. Simms why she made the false statement in her depositions as to appellant's relations with her. The question is not one entirely free of difficulty. Mrs. Simms was formerly Mrs. Spearman, and the State in making its case proved no fact that occurred while the marriage relation existed. It appears from the record that appellant was a school teacher, and Mrs. Simms one of his scholars. Appellant by his wiles seduced her, and to cover up his offense married her. It appears that after marrying her, he made certain representations to her, which will hereinafter be set forth, and induced her to swear that he was not the father of her child ,and had never had intercourse with her prior to their marriage. He then sent her away to another State, and when the case was called for trial that he had instituted, he testified also that he was not the father of the child and had never had intercourse with her prior to his marriage. Upon her return home, learning that she had been divorced during her absence, she brought suit to set aside the divorce, alleging that such allegations were false. The decree granted in his favor was set aside, and his wife granted a divorce. On the trial of this latter case, appellant again testified he had never had intercourse with Mrs. Simms prior to their marriage, and that he was not the father of her child. He was indicted for perjury, and on this trial the testimony was adduced on which this error is assigned. The depositions introduced by appellant read as follows:
"I married J.W. Spearman (appellant) on July 29, 1907. I was pregnant at the time I married J.W. Spearman. I had been pregnant about 4 months. So far as I know Mr. Spearman knew nothing of my condition as to being pregnant. He had never had intercourse with me and was not the cause of my being pregnant. I refuse to answer who was the cause of my pregnant condition. I knew that I was pregnant when I married Mr. Spearman. I did not tell him that I was pregnant. I admitted to Mr. Spearman this morning of the *Page 458 condition that I was in as to my being pregnant. I had denied to him all the while that I was pregnant until this morning. I told him all about it.
"Mr. Claude Pittman was keeping company with me during the month of March, 1907. We were engaged to be married. We were first engaged the 25th of March, 1907. He didn't come for me as he promised. We were to have been married in July, 1907. He stopped coming to see me in June. Mr. Spearman has been kind to me since I married him and provided well for me and bought everything for me that I have needed."
Thus it is seen that appellant was seeking to use on this trial the depositions of his wife, taken at his instance, to prove that he was not guilty of perjury in swearing that he had not had intercourse with his wife prior to their marriage, and that he was not the father of her child.
Now, after he introduced this evidence of his wife, should she be compelled and required to remain silent and let her child be bastardized ,and herself stamped as a wanton? We think not. Mr. Greenleaf in his work on Evidence, Sec. 337, in speaking of why the law does not permit the husband nor wife to testify as to communications occurring between them while married, says: "The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife, and whatever has come to the knowledge of either by the means of the hallowed confidence which that relation inspires cannot he afterwards divulged in testimony, even though the other be no longer living." The rule is founded upon the policy of the law, the object of which is to secure domestic happiness by protecting that state in the inviolability of its confidences. What would tend to create a breach of such confidence is therefore disfavored by the law. Does this come within the reasons for the rule? Appellant, in violation of his vows at the marriage altar, had sought and was seeking to ruin the character of his wife, and by false testimony to get a divorce from her and to throw her out on the cold charity of the world under circumstances that we know all good women would shun her. It would have been more merciful for him to have cut her throat than to have placed this stigma upon her name and character.
Appellant himself took the stand and testified. The court permitted the State to call the wife, and permitted her to testify in rebuttal to the circumstances under which she had given the depositions introduced in evidence by defendant. She testified: "I remember about what is in those depositions shown me by counsel for the defendant this morning. Q. Now, I will read these answers to you, and want you to explain to the jury why it was that you gave those answers: First, you gave your age — Stella Spearman, age 16; second, Yes sir, I married J.W. Spearman, etc.; third, I was pregnant at the time I married J.W. Spearman; I had been pregnant about 4 months; so far *Page 459 as I know Mr. Spearman knew nothing of my condition as to being pregnant. Now why was it you made that answer, Mrs. Simms? A. Well, Mr. Spearman said that I had it to do, in the condition things were. Q. Now just tell the jury fully now your reasons for that — what was your reasons and all that he said to you about it. A. He said we had to fix up those papers and that if we didn't, the grand jury would catch him up and send him to the pen. I don't remember how long it was before I signed those answers that he first mentioned that to me. He said to me that he would have the papers fixed and that you and Mr. Mitchell I believe would come there and take the deposition. He did not make any further explanation than that he said he would have to fix those papers up, and I would have to sign those papers to keep him from going to the pen. He said he would be likely to have to go to the pen for getting me pregnant before we were married. I believed what he told me about it. I don't know anything about law. I was only 16 years of age at that time. He told me to deny all the time that he was the father of the child that I was pregnant with. He told me to deny that he had had intercourse with me before we were married. He told me to deny that he had any knowledge or knew anything about me being pregnant at the time of the marriage. He didn't tell me how to answer the question if they asked me who was the cause of my being pregnant, only just to not tell anyone — not name anyone. He told me to answer it that way. He told me that not very long before the time I made those answers; I can't remember though how long. I believe I went to Oklahoma the next day after I answered those interrogatories; I don't exactly remember. I don't remember whether it was late in the afternoon when I made those answers. I don't remember exactly whether or not I left on the next morning's train. He was the cause of my going to Oklahoma; he said I had to go to Oklahoma; said if I stayed here they would get me in court and send him to the pen if they got my testimony against him. I believed it. I didn't know no better. I thought he was telling me the truth. I didn't know at the time I left here after signing these answers, that he was going to try to get a divorce from me. I never found out that he had got a judgment dissolving the bonds of matrimony existing between him and me until I got back home from Oklahoma."
In the original opinion Judge Prendergast held that as defendant had introduced in evidence her testimony taken while they were man and wife, it was permissible for the State to show under what circumstances such testimony was given. He would not be permitted to use the depositions as evidence on this trial, without the jury being acquainted with all the facts incident to giving those depositions.
This is the part of the opinion assailed in the motion, and it is claimed that these depositions were introduced to impeach her — to show that she had made different statements. It would be a new rule of law to hold that you could introduce the statements of any witness or circumstance *Page 460 to impeach her testimony, and not permit the witness to state the circumstances under which the statement was made — that she was in duress; that same was obtained by fraudulent devices or misrepresentations, made under a misapprehension, or any other ground which existed which would shed light on whether or not the statement was such as in fact affected her credibility. This is not the law. Tubb v. State, 55 Tex.Crim. Rep.; Gibbs v. State, 20 S.W. Rep., 919; James v. State, 40 Tex. Crim. 190; Smith v. State, 52 Tex.Crim. Rep.; Turner v. State, 51 S.W. Rep., 366; Hicks v. Hicks, 26 S.W. Rep., 227; Jackson v. Mumford's, Exr., 74 Tex. 104; I. G.N.R.R. Co. v. Locke, 67 S.W. Rep., 1082. It is thus seen that this court, our Supreme Court, and the Court of Civil Appeals have all held that where it is sought to impair the credit of a witness by showing different statements, etc., the witness should be permitted to explain the transaction.
Mrs. Simms having testified to certain facts before her marriage to defendant, when the defendant introduced these depositions to impair her credit as a witness, it was permissible for the court to permit her to explain the matter, and the defendant cannot invoke the statute that prohibits her from testifying as to communications between husband and wife. Had he not introduced these depositions, she should not, and doubtless would not, have been permitted to testify to those matters, but as he introduced these depositions to prove that while married to him she had so testified, there is no law that would prevent her explaining why she did do so, and the opinion of Judge Prendergast is amply supported by authority in this State and other states. But the writer, and he here is expressing his individual opinion, thinks the testimony was admissible on higher and broader grounds. As hereinbefore shown, the reason for this rule of law is to promote and secure domestic happiness, not to destroy it, nor permit one to use it as a shield to make a wanton out of his wife and bastards out of his children. Mr. Blackstone has well said: "Law is a rule of civil conduct prescribed by the supreme power of the State, commanding what is right and prohibiting what is wrong." The Legislature of our State in providing that "neither husband nor wife shall in any case testify as to communications made by one to the other while married," had a high, noble and laudable object and purpose in view. It was recognized that the safety and perpetuity of our institutions rested on the purity and integrity of our homes, and it is a wise public policy that will not permit one to step inside and mar the domestic happiness of a man and his wife. But "communications" protected are those incident to and growing out of this confidential relation, of the trust each reposes in the other. It is the consensus of opinion that the most perfect happiness can be obtained only where there is mutual confidence and trust one in the other, and they can confide in and seek counsel from each other, and even though one should be guilty of a crime against the State, yet so long as they are true to each other, the policy *Page 461 of the law is that the domestic relations shall be respected and protected, and the law will not ruthlessly step in and mar those relations. It is also known and appreciated that a wife, so long as she loves and trusts her husband, is as but clay in his hands, to be moulded to a great extent to suit his purposes; especially is this so when danger threatens him, and it is not surprising when her husband tells a young wife, who loves him, that the penitentiary door stands ajar ready to receive him, she can be induced to give voice to such schemes as he may devise, even though it wrings her heart to do so. And when a man, relying on these traits of womanhood and wifehood, shall misuse this trust and confidence, lie to her, and induce her to testify to facts which would blight her life, and the life of her child, in order to save him from punishment he represents as impending (which in fact did not exist), the law throws no such protecting shield around such conduct as will prevent her from telling the truth and reestablishing her good name and fame when he seeks by this means to wrong her. Such a law would not be a protection to the home life and family relations, but would permit a consummate scoundrel to prey upon the love and affection of a good woman, work his nefarious designs, consign her to a hell here on earth, and yet go scot free, under such a construction of the law. We have no precedent in this State so far as we have been able to find, but in Beyerline v. State, 147 Ind. 125, the defendant was being tried, charged with forging another's name. He sought to avoid punishment by pleading he did not sign the name to the note, and while the evidence is not clear in the reports, yet it would seem he sought to throw suspicion on his wife, when the court permitted his wife to testify that it was true she signed the name to the note, but that her husband "caught her by the back of the neck and compelled her to sign the name." In that State the statute also prohibits the husband and wife from testifying as to communications made to each other. (Rev. Stat. of Ind. 1894, Sec. 504.) In that case the court says: "Where the criminal, in seeking advice and consolation, lays open his heart to his wife, and the law regards the sacredness of their relation, and will not permit her to make known what he has thus communicated. But if what is said or done by either has no relation to their mutual trust and confidence as husband and wife, then the reason for the rule falls." And it has been so held by this court in Richards v. State, 55 Tex.Crim. Rep.; 116 S.W. Rep., 587, Judge Davidson rendering the opinion. See also Cole v. State, 51 Tex.Crim. Rep.; 101 S.W. Rep., 218; Ex parte Fatheree, 34 Tex.Crim. Rep.. Where it is thus shown that instead of giving to the wife that love and protection the law presupposes, he would use the statute as a shield for his wrong doing and work to her injury to serve him in an unlawful purpose, as said by the Supreme Court of Missouri, speaking through Judge Sherwood, in discussing this question, Vol. 99, page 421: "It would be simply monstrous to permit a party to take advantage of his own wrong, and assist his fraud by such an objection. *Page 462 The rule he invokes was intended to subserve a very wise, wholesome and holy purpose, but never to further such an end as that for which he invokes it." See also 134 Mo. 580.
Analogous to this is the protection given by the law to communications between attorney and client, which are held to be privileged. In passing on this question, the Supreme Court of Michigan, of which that eminent and able law writer, Judge Cooley, was Chief Justice, in the case of People v. Van Alstine,57 Mich. 79, says: "But there are exceptions to the general rule, based upon public policy and public security. Professional communications are not privileged when such communications are for an unlawful purpose, having for their object the commission of a crime. They then partake of the nature of a conspiracy, or attempted conspiracy, and it is not only lawful to divulge such communications, but under certain circumstances it might become the duty of the attorney to do so. The interests of public justice require that no such shield from merited exposure shall be interposed to protect a person who takes counsel how he can safely commit a crime. The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes. The privilege does not exist in such cases. 1 Gilb. Ev., 277; Greenough v. Gaskell, 1 Mylne K., 98; Coveney v. Tannahill, 1 Hill. (N.Y.) 33; Bank of Utica v. Mersereau, 3 Barb. Ch., 528; People v. Blakeley, 4 Park. Cr. Rep., 176; 1 Whart. Cr. L., Sec. 773; Roscoe's Cr. Ev., 150."
Our own court in the case of Orman v. State, 22 Texas Crim. App., 617, adopts this line of decisions, and declares it to be the law, that communications having relation to the commission of crime are not protected as privileged. It is true that this rule is not applicable to the relations of husband and wife to the full extent stated as to attorney and client, because the law has so high regard for the home, and is so solicitous to throw its protecting shield around it, that even though one should communicate to the other his intention to commit crime, it would not permit either spouse to so testify, but this is for the reason that it desires nothing shall be done to disturb the marital relation, deeming it essential to the best interest of the State, and of the highest public policy. But in a case like this, where, if such was the law, it would be but an instrument to break up and tear down the domestic relations, bastardize children, and work incalculable mischief, there is no public policy to be subserved. It is only in rare instances where the wife should be permitted to testify in a case against her husband, but when the occasion does arise, trial judges should, as did the learned trial judge in this instance, interpret the law according to its true intent and meaning, and not permit a too literal interpretation of words work inconceivable mischief, and the law become a shield and cloak to intentional criminal conduct, and where the husband would ruin whom it is his duty to protect — his wife. Cole v. State, 51 Tex.Crim. Rep.; 101 S.W. Rep., 218.
The motion for rehearing is overruled.
Overruled. *Page 463