Clubb v. State , 1883 Tex. Crim. App. LEXIS 154 ( 1883 )

Willson, Judge.

Defendant was convicted of an aggravated assault and battery upon his father, John Clubb. Upon the trial John Clubb testified in behalf of the State, and in rebuttal of the State’s evidence defendant offered as a witness Julia Clubb, the wife of the State’s witness, John Clubb. It was objected by the district attorney that she was an incompetent witness, because she was the wife of John Clubb, and was offered to contradict the testimony of said John Clubb, and, in so testifying, she would be testifying against her husband. This objection of the district attorney was sustained, and the witness was not permitted to testify; to which ruling of the court the defendant excepted.

We do not think the witness was incompetent to testify in this cause. John Clubb, her husband, was not a party to the cause, and in testifying she would not be testifying against him within the meaning of Article 735 of the Code of Criminal Procedure. Mr. Wharton, in his work on Criminal Evidence, says: “The fact that a married person has testified in one way in a trial does not preclude the husband or wife from testifying precisely to the opposite. Such impeaching testimony is admissible, even though the effect be to discredit the party contradicted.” (Whart. Cr. Ev., sec. 402.) This is not in conflict with Roach v. The State, 41 Texas, 261, because in that case it was proposed to impeach the testimony of the wife by proving by her husband statements made by her to him contradictory of her testimony. It was clearly not permissible to do this, because it would have been allowing the husband to testify to communications made to him by his wife while the marriage relation subsisted between them. (Code Crim. Proc., Art. 734.) But in this case the witness was not offered to prove any such communications, but to prove facts of which she had a personal knowledge, which knowledge was not acquired from her husband, or through her marital relation with him.

Another error assigned is the charge of the court. It was agreed by the parties that the court might deliver to the jury an oral charge, which the court proceeded to do by reading to the jury all the articles of the Penal Code relating to assault and battery and to aggravated assault and battery, from Article 484 to Article 498, inclusive. This wholesale charge was excepted to by the defendant as calculated to confuse and mislead the jury, and we think the exception is well taken. A charge should give the law applicable to the facts of the case, and none other. It should be so adapted to the pleadings and evidence that a jury can not misunderstand its application. (Clark’s Cr. Law, p. 515, note 204.)

Because of the errors we have noticed above, the judgment is reversed and the cause remanded.

jReversed and remanded.

Opinion delivered May 12, 1883.