Appellant was convicted of adultery, his punishment being assessed at a fine of $300.
This is a case of circumstantial evidence. Appellant was charged with having had habitual carnal intercourse with Ada Goodman, the said Ada Goodman being a married woman, without living together. Bill of exceptions No. 1 shows that after the jury had been empaneled the county attorney read to the jury the complaint and called Standridge to testify, and after being questioned as to his name and residence, and if he knew appellant, he was asked the question whether or not he had ever seen defendant and Ada Goodman together. Appellant objected to the testimony of this witness for the reason the information had not been read to the jury, and the reading of the complaint to the jury not being in accord with the statute. This was all overruled and the witness testified. This is generally stated here because this matter runs throughout the case. The judge states that the State offered to read the information and the defense objected, whereupon the court ordered the trial to proceed without reading the information. The reason given by the judge in his qualification is a strong reason why his ruling was error. When the defense objected he was entitled to have that objection sustained, and the county attorney required to read the information. Appellant was only called upon to plead to the information, not a complaint. The complaint is the basis of the information, but the prosecution can not be had without the information and its being read to the jury. It is to this that the accused is required to plead. Appellant's objection was well taken to the evidence, and the court should have sustained it and permitted the county attorney to then read the information and a plea should then have been entered, and the case then tried. See art. 717, C.C.P. Among the late and one of the best considered cases among the decisions of Texas is Essary v State,53 Tex. Crim. 596, written by Judge Ramsey when he was a member of this court. He reviews the authorities and the whole matter. Appellant's objection either should have been sustained *Page 467 or the county attorney required to read the information, and then try the case.
Another bill recites that the county attorney asked the witness Ada Goodman if she and defendant had not had intercourse in Lampasas County on numerous occasions. She replied in the negative; thereupon the county attorney asked her if she had not stated to the justice of the peace and county attorney that she had had carnal intercourse in Lampasas County on numerous occasions and if she did not sign a written statement to that effect, the county attorney reading from a purported statement made by said witness. To all this appellant objected for divers reasons. The county attorney stated it was offered for the purpose of impeachment, which statement was then read. To all this exception was reserved. The court signs this with the statement that the State through its attorney had promised the witness Ada Goodman immunity from prosecution for her part in the adultery charge, provided she would testify to this matter "as per her knowledge of all the matter," and when she was placed on the stand by the State she denied the whole of her former statement, and the county attorney pleaded surprise and offered the statement for the purpose of impeachment of Ada Goodman, and the court admitted the testimony or former declaration on that point. It will be noticed that the promise of immunity, as stated by the judge, and this is the only place where it occurs so far as this record is concerned, was made on the condition that the accomplice would testify to this matter as it was within her knowledge. She was an accomplice, and a promise of immunity by State's counsel in order to be binding would have to be sanctioned by the court. There is nothing in the record and nothing in the bill of exceptions to show that the court agreed to any dismissal of the prosecution against her unless it be the mere fact that he required her to testify upon the statement of the county attorney that he had promised the witness immunity on the stated conditions. This promise, as stated, was not an exemption from prosecution if the county attorney and the court are correct. Immunity from punishment or from prosecution under such circumstances is not binding and amounts to nothing unless the immuned accomplice testifies to the truth. This has been settled by an unbroken line of decisions in Texas. She was an accomplice, and if the State's contention is right she was guilty, and she had made a statement to that effect, and the State expected to prove those facts. There was no immunity; there was no dismissal of the prosecution, and so far as the record is concerned this prosecution was held over her without dismissal so that she might testify against defendant to incriminating facts. She has not been rendered by the very statement of the county judge immuned from punishment if she did not tell the truth, even had the county judge sanctioned the immunity promise. This matter has been the subject of a great deal of discussion in the decisions as to when the State may impeach its own witness under the theory that the State has been surprised and *Page 468 injured. This qualification of the judge does not show that the woman agreed to turn State's evidence. The county attorney proposed immunity if she would testify to the matter as she understood it, otherwise than by an indirect conclusion suggested by the fact the State swore her as a witness, there is nothing to indicate that she ever agreed to such thing, and when placed upon the stand she emphatically denied the whole matter. She was an accomplice and could not be forced to testify, and could not be used against her consent. See 51 Tex.Crim. Rep.. The rule also is in matters directly upon this question that declarations of a codefendant can not be used against the other codefendant. Quinn v. State, 51 Tex.Crim. Rep.. While for the State a codefendant may be a competent witness, yet the State is bound by such circumstances as each case may develop. The witness may testify freely for the State if he or she so desires, and may thus turn State's evidence with or without any contract, but where the party turns State's evidence on a contract that contract must be sufficient to be binding in the courts. It is not thought necessary to cite authorities on that proposition. Had she testified as the State anticipated, she would have been an accomplice, and the trade was made with her upon the theory that she was an accomplice, otherwise the promise of immunity would have been worthless. From any view we think this impeachment was not admissible. She had testified to no fact against the State except she declined to state that appellant was guilty of having carnal intercourse with her; in fact, she stated he had not had. This was not injurious to the State. She had not testified to anything against the State. She had just refused or failed to make out a case for the State. Had she testified to some material fact against the State that would be damaging to its case, we would have had a different proposition, but she had not testified anything against the State in stating that she had not had intercourse with appellant. The State was trying to make out a case through her testimony, but she declined to assist the State. It was just a failure on her part or a refusal to assist the State in proving the guilt on the part of the defendant. We are of opinion this testimony was not admissible from any viewpoint.
The signed statement of Ada Goodman was offered in evidence and admitted over appellant's objection. It is unnecessary to discuss that because it is a part of the same proposition. The State should not have been permitted under the circumstances to put the witness on the stand, and failing to prove a fact, then impeach her by proving that she had made statements otherwise that would implicate or incriminate the defendant. The court did not charge with reference to the use of the impeaching testimony or that the woman was an accomplice and could not corroborate herself. Certainly she could not be corroborated by such character of impeachment. She was made not only an unworthy witness by impeachment, but this emphasized the fact that her testimony was used to get before the jury evidence she refused to give and fully denied. *Page 469
For the reasons indicated the judgment is reversed and the cause remanded.
Reversed and remanded.