Secker v. State , 28 Tex. Ct. App. 479 ( 1890 )

White, Presiding Judge.

Appellant was charged by information brought under article 495a, Penal Code, with using violent, abusive language of and concerning one Mrs. F. C. Johnson, calculated to provoke a breach of the peace. He was charged to have used towards her the language, “You dirty bitch,” and the offense was alleged to have been committed on the 4th day of May, 1889.

A similar information was separately filed against Mrs. Henry Seeker, wife of appellant, charging her with a like offense, also committed on the 4th day of May, 1889; but the language charged to have been .used by Mrs. Henry Secker towards Mrs. F. C. Johnson was “You dirty old slut.”

On the trial of this appellant he proposed to introduce his wife, Mrs.' Henry Seeker, as a witness in his behalf, when it was objected by the prosecution that she was an incompetent witness because she was under prosecution for the same offense, though by a different information. This objection was sustained by the court, and the witness Avas not allowed to-testify, to which ruling appellant duly saved a bill of exceptions. We are of opinion the court erred in the ruling. The offenses charged against the parties were not the same. The words charged against the parties were not identical, and there is nothing identifying the transactions as the same save the name of the injured party and the date of the alleged offenses. Though both parties are charged with the same statutory offense,, they are, not charged with the same transaction.

Judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.