Brock v. State , 60 L.R.A. 465 ( 1902 )

The indictment is for rape, the first count charging rape upon Hattie Meads, a girl under 15 years of age, and the second count rape upon the same girl by force, threats and fraud. Both counts were submitted to the jury, and a verdict of guilty was returned, assessing the death penalty.

The offense occurred May 28, 1902. The absent witness, Elliott, was expected to testify that he knew the age of the prosecutrix; that the date of her birth was the 25th of April, 1887; the alleged rape having occurred the latter part of May, 1902. That he was living in San Angelo, where Meads and his wife were married, during the years 1886 and 1887, and neighbor to the mother of the prosecutrix, when prosecutrix was born; that the mother's maiden name was Corintha Bell Stewart; that she married Gid Meads, father of prosecutrix, on June 14, 1886; that during the years 1886 and 1887 Gid Meads and his wife were neighbors to witness and his family; that their families visited and witness knows all the above facts to be true. This application for continuance was refused.

Attached to the motion for new trial is the affidavit of Mrs. A.J. Potter and her son Sid. Sid Potter states in his affidavit that his age is 26 years in September of this year; that he knew all the parties to this transaction, and knows the mother of prosecutrix gave birth to a girl child, after her marriage, prior to May, 1887; in other words, fixes the date of the birth of the child more than a month prior to the 28th of May, 1887. Mrs. A.J. Potter states in her affidavit that she now lives and has resided in the town of San Angelo for twenty years continuously, and was living in the town during the years 1886 and 1887; that she was well acquainted with Corintha Bell Brock, mother of prosecutrix; that her maiden name was Stewart; that she was well acquainted with her former husband, Gid Meads, father of prosecutrix, and remembers the circumstances of the marriage of Mrs. Brock with Gid Meads; that they were married in 1886, by the Rev. A.J. Potter, affiant's husband. That immediately after the marriage Mr. and Mrs. Meads moved on to the "same block" in which affiant then lived, at the rear of affiant's lot, and lived there the remainder of the year 1886 and the year 1887, during which time affiant was a constant visitor of the Meads family. That some time during the spring of 1887 Mrs. Meads gave birth to a female child; that this particular child was born in about ten or eleven months after the marriage of the mother to said Gid Meads; that affiant was at the residence of Mrs. Meads shortly after the birth of the child, and knows it was a female child, and, if called upon, would testify to the above facts. This is alleged to be newly discovered testimony, and is brought strictly within the rules authorizing a new trial upon such testimony. If the testimony of Elliott or the testimony of Mrs. Potter and her son is true, or would raise a reasonable doubt as to the age of the girl in the minds of the jury, then it was most material. A new trial should have been awarded upon both grounds. The wife of appellant was used as a witness by the State and gave evidence of a most damaging character against him. She was required to hold up before the jury the family quarrels, the family disturbances, alleged assaults upon her by appellant, as evidence against him. This testimony showed him to be of a cruel disposition. In fact, it shows a life of turmoil and trouble and assaults and threats by the husband against the wife and the prosecutrix, continuing for some time prior to the alleged rape. The only exception taken to her testimony was that discussed in a former portion of this opinion. The question of her competency was not raised in the trial court, but for the first time is questioned on appeal. The proposition being that, under our statute, the wife is not a competent witness against the husband in a criminal proceeding of this character with or without his consent; that neither spouse can consent to the other testifying against him in a criminal case, except where it is an offense of one against the other. So far as we are aware, for the first time this question has been presented to this court for adjudication. In Daffin v. State, 11 Texas Crim. App., 76, while not discussed, it was held that objection to an illegal cross-examination of the wife came too late after trial. In Dill v. State, 1 Texas Crim. App., 278, there is an intimation that the wife would not be permitted to testify against appellant under any circumstances, unless it was an offense by her husband against her. In this particular case, she not only testified to various violations of law not involved in the rape case, as well as the alleged rape, but also confidential communications and matters of that character. Article 774, Code Criminal Procedure, provides that "Neither husband nor wife shall in any case testify as 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 subsists, except in a case where one or the other is prosecuted for an offense, and the declaration or communication made by the wife to the husband or by the husband to the wife goes to extenuate or justify the offense for which either is on trial." Article 775, Code Criminal Procedure, further provides, "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." The question as to whether or not this is a question of privilege subject to waiver by the parties, or can be waived by consent of the parties has been a matter of some discussion in the courts. In New York it was held that it could be waived; but that statute is totally unlike the Texas statute, and its language is peculiar. It provides the husband or wife of the person indicted or accused of a crime is in all cases a competent witness on the examination or trial of such person, but neither husband nor wife can be compelled to disclose a confidential communication made by the one to the other during their marital relation. New York Penal Code, sec. 715. That was the article the New York court construed in the cited cases. It would seem that in England the rule is not satisfactorily settled, but, as we understand the weight of the authorities there, the husband or wife can not consent to the other testifying against him; and various reasons are assigned why this is true. Practically the authorities there, as well as in the United States, have agreed that the best reason for the rule is based on public policy. Courts have been driven or have resorted to reasoning why statutory rules are prescribed. What actuated the legislative body in creating certain enactments may be satisfactory to a court to understand; but whatever the reason for rules of this character may be, if the wording is plain, it is totally unnecessary to seek out reasons. It is sufficient for the court, where the language is plain, to adhere to the language employed. Usually a party upon trial may waive such matters as are usually termed rights; but it may be stated accurately that such matters as he may waive are those that are usually known as privileged, as the relation, for instance, between attorney and client. If his rights alone were the issue, it might be perhaps held that they could be waived; but where the policy of the law enters into it and goes beyond this, or where the statute places it beyond the question of privilege of the accused, and makes the inhibition a matter of public policy, it is to be seriously questioned that the court would be justified in holding such matters could be waived. In this particular character of case, the spouse upon the stand has a right to be protected under the statute from being required to answer. The other spouse being upon trial has a right to be protected, and society has an overshadowing right that family matters should not be dragged into the courts of the country to the subversion of the family relation, which is the paramount substratum and basic principle of society. In Stone v. Bowman, 13 Peters, 209, the Supreme Court, speaking through Justice McLean, said: "The rule which protects an attorney in such a case is founded on public policy, and may be essential in the administration of justice. But this privilege is the privilege of the client, and not of the attorney. The rule which protects the domestic relations from exposure rests upon considerations connected with the peace of families. And it is conceived that this principle does not merely afford protection to the husband and wife, which they are at liberty to invoke or not, at their discretion, when the question is propounded; but it renders them incompetent to disclose facts in evidence in violation of the rule. And it is well that the principle does not rest on the discretion of the parties. If it did, in most instances it would afford no substantial protection to persons uninstructed in their rights, and thrown off their guard and embarrassed by searching interrogatories. In the present case the witness was called to discredit her husband; to prove, in fact, that he had committed perjury; and the establishment of the fact depended on his own confessions. Confessions which, if ever made, were made under all the confidence that subsists between husband and wife. It is true the husband was dead, but this does not weaken the principle. Indeed, it would seem rather to increase than lessen the force of the rule. Can the wife, under such circumstances, either voluntarily be permitted, or by force of authority be compelled, to state facts in evidence which render infamous the character of her husband? We think, most clearly, that she can not be. Public policy and established principles forbid it. This rule is founded upon the deepest and soundest principles of our nature, — principles which have grown out of those domestic relations that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence." In a late case by the same august tribunal, the case of Stone v. Bowman was cited with approval. See Bassett v. United States, 137 U.S. 762. This opinion was delivered by Justice Brewer, and the question was whether or not one of the polygamous wives could be heard to testify against her husband. The Supreme Court held her incompetent. This language is found in the opinion: "Is polygamy such a crime against the wife? That it is no wrong upon her person is conceded; and the common law exception to the silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she feels or suffers, but whether the crime is one against her. Polygamy and adultery may be crimes which involves disloyalty to the marital relation, but they are rather crimes against such relation than against the wife; and, as the statute speaks of crimes against her, it is simply an affirmation of the old familiar and just common law rule. We conclude, therefore, that under this statute the wife was an incompetent witness as against her husband."

It has been held in this State that the statute has not changed the common law rule. If that be true, then the two cited decisions rendered by the Supreme Court of the United States are in point. It occurs to us that the common law rule is rather broadened and emphasized than weakened by our statute. This line of reasoning finds support in many of the text writers. See 3 Rice on Ev., p. 282. There this language is found: "And it is well that the principle does not rest on the discretion of the parties. If it did, in most instances it would afford no substantial protection to persons uninstructed in their rights and thrown off their guard and embarrassed by searching interrogatories." See the Law of Evidence, by Burr W. Jones, vol. 3, sec. 757, and authorities cited in note 6; 1 Greenl. on Ev., sec. 340; Davis v. Dinwoodie, 4 Tex. 678; 1 Ves., Jr., 49. The only English authority which has been called to our attention laying down a contrary doctrine is Pedley v. Willesley, 3 Car. Payne, 588. That case does not enter into a discussion of the question, or state any reason for the holding; nor does it state whether it is under the common law, or the act of Parliament, which seems to have abridged the common law in regard to this rule. Without further discussion of the question, we are of opinion that it was error, though no exception was reserved, to use the wife as a witness against appellant. In other words, under the statute she is an incompetent witness, whose evidence can not be used even by the consent of the husband, and she can only be used when placed on the stand by her husband, except where the offense is against her personally. Offenses against the daughter are not offenses against the wife.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.