Vickers v. State , 69 Tex. Crim. 628 ( 1912 )

The State has filed a motion for rehearing in this cause, and first insists that we erred in holding that the testimony of Mrs. Vickers was inadmissible, and cites us to the cases of Cole v. The State, 51 Tex.Crim. Rep., 101 S.W. Rep., 218; Richards v. The State, 55 Tex.Crim. Rep., 116 S.W. Rep., 587, and in those cases it may be said that in construing the statutes relating to the wife testifying against her husband, it is apparently held that after the marriage relation ceases, the divorced wife may testify to anything that took place while the marriage relation existed, except such matters as were of a confidential nature.

Article 795, Revised Code Criminal Procedure reads: "The husband and wife may, in all criminal actions, be witnesses for each other; but they shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other."

This court has strictly construed this statute, and held that while the marriage relation continues to exist the State can not call the wife as a witness in any case, except where he is being prosecuted for an offense against her, and in the case of Compton v. The State, 13 Texas Crim. App., 271, Judge White in a well considered opinion, held that under this provision of the Code the wife was not a competent witness in the prosecution for incest against her husband, and this opinion has been adhered to by this court since its rendition. In that case the wife had not been divorced, and counsel may well contend that it does not apply, as Mrs. Vickers had been divorced at the time she was offered as a witness in this case, and this brings her under the law as announced in Article 794, Revised Code Criminal Procedure, which reads: "Neither husband nor wife shall, in any case, testify to communications made by one to the other, while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense; and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial." In construing this article of the Code in the Cole case and Richards case, supra, this court seems to have held that after the marriage relation has ceased to exist it is the "confidential communications" which are inhibited by the statute, and that the wife, after divorce, may testify to anything that occurred while the marriage relation existed, not of a confidential nature, it being specially so decided by Presiding Judge Davidson in the Richards case, hereinbefore referred to, and which opinion we have recently followed and adhered to.

In this case Mrs. Vickers testified: "My name is Ella Vickers; I live out on the San Gabriel River — on the North Gabriel, on the old Vickers place. My maiden name was Milligan. I have been married twice. W.R. Walston was my first husband. He died in Burnet County, about a mile and a half from Fairland. He died in 1898, I believe. He left an estate; he left a farm up there. We sold the farm and divided it with the heirs; let the heirs have their part, and then we took what was left and put part of it in the old Vickers place, the one we now live on. There were some legal proceedings had for the purpose of selling this property; the court sold the property. The first payment on the Vickers place came out of a land note from the other place. When I married the second time I was married in North Georgetown, at Cobb's residence. Jim Vickers was my second husband; that man there (points to defendant). Ollie Walston is my daughter by my first husband. My youngest child was thirteen months old yesterday. Ollie Walston has a child; her child was eight months old the 13th of this month. As to my condition during the month of January, 1911, as to being pregnant or not, — I will say that I was getting kinder helpless. What I mean by that is that I was pregnant; I was in what is known as a family way." In the original opinion we may have stated the law too broadly to make it clear that we did not intend to overrule nor limit in any degree the rule announced in the Richards and Cole cases, and authorities therein cited. If the language in the original opinion can be so construed, it is withdrawn. However, we are still of the opinion that all this testimony was not admissible, and in so holding we do not think it in anywise conflicts with those cases. Appellant was being prosecuted for having had carnal intercourse with his stepdaughter in January, 1911, and we do not think it was permissible to show by the wife that she at that time was pregnant. What was or could be the purpose in eliciting this testimony? Only to show that appellant's wife was in such condition he could not and probably would not have sexual intercourse with her at this time, and therefore would the more likely be guilty of having sexual intercourse with some other woman, — his stepdaughter. This, we think, is permitting the State to invade too far the privacy of the marriage relation existing between the husband and wife, — to prove such facts by either as evidence against the other. As to the details of the land transaction, in this we may be in error, and this is the part of the original opinion withdrawn.

The State again insists that we were in error in holding that as the record showed that appellant had a son prior to his marriage to the prosecuting witness' mother, that it also ought to have been proven that his former wife was dead and he had been divorced from her. The McGrew case cited in the original opinion so announces the law, and we have found no decision holding otherwise. The case cited by the State, Nance v. The State, 17 Texas Crim. Apps., 385, merely holds that proof of the fact that a woman had a daughter at the time she married Nance, was no evidence that she had ever been married. But is this also true of a man? Can he legally have a son without having been married? The law recognizes the child of a woman before marriage as her child, but not so as to a man. Such child could not inherit from the man, but could from the mother. While some may cavil as to this distinction in law, and think it should be changed, but so long as it is the law, it must be respected and obeyed.

The other contention, that we erred in holding that it was error for the prosecuting officers to refer to defendant's failure to deny that he had sexual intercourse with his stepdaughter, after careful and thoughtful study of the record, and the law applicable thereto, we are more thoroughly convinced, if anything, that this was such error, as it alone ought to result in a reversal of the case. In this case the State's counsel called attention to the fact that no one was present when the act of intercourse took place (if it did take place) other than the prosecuting witness and appellant; that the prosecuting witness swore positively that it did take place, and appellant did not deny it. Language could not be used that would more forcibly impress that fact on the jury's mind, and it apparently was done to aid in securing a conviction of defendant. The corroboration of the prosecuting witness was perhaps sufficient to sustain the conviction, if fairly obtained, but it is not of that cogent force that a jury would not have been justified in finding otherwise. And under such circumstances the State can not be permitted to obtain a conviction by illegitimate and questionable methods.

The motion for rehearing is overruled.

Overruled.