McCray, Alias Rosson v. State , 38 Tex. Crim. 614 ( 1898 )

Appellant was convicted of an aggravated assault upon his wife, and appeals.

During the trial the wife was placed upon the stand, and questioned with reference to the alleged assault, which she denied. The State, after first laying the predicate, over appellant's objection, proved her statement made before the grand jury in regard to the matter, in which she swore to certain facts which constituted this assault. The court seems to have admitted this testimony mainly upon the theory that she was an unwilling witness, but, under the record before us, it would be immaterial whether it was upon this theory or for the purpose of contradicting her. That an unwilling witness may be led, under some circumstances, is conceded, and that witnesses may be impeached is placed beyond question; but, because these propositions are true, it does not authorize the State to prove, as original testimony, its case by showing the witness made statements outside of court contradictory of those testified to on the trial. The State may contradict its witness when that witness has sworn to material evidence injurious to the State, but it can not put the witness on the stand, and, having failed to make proof of a criminating fact, prove its case by the statement of the witness made off of the witness stand at any other time or place. In this character of case it would be simply a failure of proof, and the State can not supply that failure by showing that the witness made statements at other times or places which, if true, might establish the charge upon which the defendant was being tried.

The State also introduced the judgment in the divorce suit between the defendant and his wife in which she obtained a divorce. By that judgment it was shown that the ground upon which the divorce was granted was his assault upon her. This was objected to by appellant. This action of the court was clearly erroneous, it having no other effect than to show that the allegations in the information were true. If not introduced for this purpose, it would be difficult to conceive the purpose of its introduction. The assault in this case could not be proved in this manner. For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.