Ayres v. State , 105 Tex. Crim. 15 ( 1926 )

In the case of Dill v. State, 1 Tex.Crim. App. 278, it appeared that Bell, Dill and Rice were indicted for the offense of murder. On the trial of Dill, Margaret Bell, wife of William Bell, was called by the state as a witness. Citing textbooks and decisions, the court held that Mrs. Bell was incompetent against Dill to facts which might inculpate her husband, William Bell. After Mrs. Bell had testified, the state dismissed the prosecution against her husband. The court said:

"The construction we put upon Article 3113 is that it was never intended so to change the rules of the common law as to make her a competent witness to testify against other defendants on trial with her husband, as in this case; for the Article of the Code relied on says the husband and wife can in no case testify against each other, except in a criminal prosecution for an offense committed by one against the other. If her testimony was not competent at the time it was given, the entering of the nolle prosequi as to her husband did not remove the objections to it. After the nolle prosequi was entered, she might have been called to the stand as a witness for the state and her testimony would have been admissible. But this was not done."

Mrs. Toland testified on the trial to a criminal transaction in which Ayres and Toland were parties, occurring at the time when she was the wife of Toland. At the time of the present trial, she was divorced from Toland, he having been convicted of the offense and sent to the penitentiary.

Appellant contends that the conviction of Toland of the offense which he and Ayres had committed would not render Mrs. Toland a competent witness against Ayres. The precedents touching circumstances which remove the incompetency of the wife as a witness against a co-defendant are not uniform. See Ruling Case Law, Vol. 28, p. 487, Sec. 72. In this state, the controlling principle seems to be that any condition which renders the husband immune from harm from the wife's testimony will remove the legal objection to her as a witness against a co-defendant of the husband. Such we understand is the rule announced in Dill v. State, supra, from which we have quoted, where the dismissal of the case against the husband was declared sufficient to remove the disqualification of the wife as a witness against a co-defendant of her husband. The same announcement was made in Daffin's case, supra, and is recognized as sound in the cases cited in the original opinion. It was applied in a decision of this court written by Presiding Judge Davidson, reported in the case of Rios v. State, 39 Tex. Crim. 675, holding that a valid agreement to dismiss the prosecution against her husband rendered the wife a competent witness against a co-defendant of the husband. This principle, we think, should control in the present case, so that the final conviction of Toland of the offense committed by him and Ayres would render Mrs. Toland a competent witness against Ayres.

The motion for rehearing is overruled.

Overruled.