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Caldwell v. State , 162 Tex. Crim. 486 ( 1956 )


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  • 287 S.W.2d 176 (1956)

    Sandy CALDWELL, Appellant,
    v.
    The STATE of Texas, Appellee.

    No. 28065.

    Court of Criminal Appeals of Texas.

    February 22, 1956.

    *177 Henry Tirey and Joe McNicholas, by Henry Tirey, Dallas, for appellant.

    Henry Wade, Criminal Dist. Atty., Lancaster Smith, Charles S. Potts, Assts. Criminal Dist. Atty., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

    MORRISON, Presiding Judge.

    The offense is statutory rape; the punishment, 65 years.

    The prosecutrix testified that the appellant, her step father, had intercourse with her, from which she became pregnant and gave birth to a child.

    The appellant denied that he was the author of the prosecutrix' downfall and offered his wife's sister who had lived in the home with him and his family, who testified that she had never observed any improper conduct of the appellant toward the prosecutrix.

    During the development of the case, Mattie Caldwell was referred to many times as the appellant's wife.

    As their first witness on rebuttal, the State called Mattie Caldwell to the stand and thereby forced the appellant to object to her testimony on the grounds that she, being the wife of the appellant, was an incompetent witness. The logical deduction which the jury might draw from the tender of this witness was that she could have refuted her sister's testimony about the appellant's conduct toward his step daughter and would have done so if the appellant had not objected to her testifying.

    In Lynn v. State, 113 Tex. Crim. 637, 21 S.W.2d 1042, we held that Article 714, V.A.C.C.P., placed the seal of silence upon the lips of the wife of an accused and that if the State were permitted to call the appellant's wife to the stand, thus forcing him to object to her testimony, this would permit the State to prove indirectly what the statute prohibited them from doing directly. Judge Martin in the Lynn case, supra, ably discussed the policy of the law in this respect, and such case is authority for the reversal of this conviction. See also Davis v. State, Tex.Cr.App., 268 S.W.2d 152.

    For the error pointed out, the judgment is reversed and the cause remanded.