McLean and Barnett v. State , 32 Tex. Crim. 521 ( 1894 )

SIMKINS, Judge.

Appellants, who are negroes, were convicted of adultery, and their punishment assessed at 8100 each.

1. The parties being jointly indicted and jointly tried, the State, over the objection of defendants, introduced as a witness Sophrona Barnett, wife of appellant Ellis Barnett, who testified as to the most inculpatory facts in the case. This is assigned as error. The code declares the husband and wife shall in no case testify against each other, except in a criminal prosecution for an offense committed by one against the other. Code Crim. Proc., art. 735. In Compton’s case, 13 Texas Criminal Appeals, 271, it was held, that the adultery of one of the parties was not embraced in the terms of said article 735, and it was error to admit such testimony. This construction of the code was approved in Thomas’ case, 14 Texas Criminal Appeals, 72, and Johnson’s case, 27 Texas Criminal Appeals, 135.

In his qualification to the bill of exceptions the court says, “ the proof was offered only against defendant Kate McLean, and the jury were instructed not to consider the testimony as to Ellis Barnett.”

The testimony was as to the acts of adultery between the parties. It would have been impossible for a reasonable mind to have obeyed the instruction of the court. The error could not be cured by such an instruction.

2. Appellant further complains, that the court limited him to seventeen minutes for discussing the testimony before the jury. Taking into consideration the number of witnesses testifying and the conflict in the testimony, we think the court erred in placing any such limitation upon counsel. Walker’s case, ante, 175.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.