Ayres v. State

The offense is robbery, and the punishment is six years in the penitentiary.

One of the principal witnesses for the state was the divorced wife of Dick Toland, appellant's co-defendant in this case. The record discloses that the witness was married to Dick Toland at the time the offense is alleged to have been committed, and that she was later divorced from the said Toland and was at the time of the trial married to another person. The record further discloses, however, that Toland had already been tried for this particular offense and was at the date of this trial serving his sentence in the penitentiary.

The appellant by his first complaint challenges the action of the court in permitting the divorced wife of Toland to testify against him because at the time of the alleged offense she was the wife of his co-defendant and that she was therefore disqualified to give testimony against this defendant under Art. 794, Vernon's C. C. P. The appellant's contention in this matter is without merit. It is only in cases where the case against the co-defendant is not disposed of that it is error to permit the wife of a co-defendant to testify to criminative facts against the defendant on trial. Dill v. State, 1 Tex.Crim. App. 282; Dungan v. State, 39 Tex.Crim. Rep.,45 S.W. 19; Spencer v. State, 52 Tex.Crim. Rep.,106 S.W. 386; Bomar v. State, 55 Tex.Crim. Rep., 116 S.W. 798. Each of these cases is based upon the proposition that it is error to permit the co-defendant's wife to testify against the defendant on trial when the case is still pending against the husband of the witness. In the instant case there can be no question but that the case was not still pending but on the contrary was finally disposed of. A final judgment had been rendered against the appellant's co-defendant and his co-defendant, as above stated, was actually serving his time in the penitentiary.

Complaint is made at the court's action in permitting the District Attorney to ask leading questions. These matters are not of sufficient importance as presented to justify a reversal of this case.

Appellant also complains because the District Attorney asked the witness the following question: "Did Dick Toland after this robbery — after this robbery did Dick Toland or George Ayres either one tell you or say anything to you about not telling about this transaction?" The witness answered this question in the affirmative and stated that her husband told her in the presence of the appellant if she told it he would kill her. The appellant objected to this question on the ground that it was irrelevant, immaterial, argumentative and prejudicial. His objections were without merit. The record discloses that appellant offered testimony seeking to impeach this witness by showing that she had on a former occasion denied that the appellant or her husband had had anything to do with this robbery. The testimony above objected to was certainly admissible as tending to explain this contradictory statement which the appellant showed had been made by her.

Appellant by another bill of exceptions seeks to have the case reversed because of the court's action in refusing him a new trial on the ground of newly discovered evidence. The bill of exceptions shows that evidence was heard on this question and the bill affirmatively shows that the testimony offered on this motion for a new trial was not reduced to writing and filed in the trial court in the term at which the defendant was tried, and the bill of exceptions presenting the matter was not filed during the regular term of the District Court at which appellant was tried. Under the unbroken line of authorities in this state it is incumbent upon the appellant to file his bill of exceptions presenting matters of this character at the term at which the trial is held. Vineyard v. State, 96 Tex. Crim. 401,257 S.W. 548; Turman v. State, 101 Tex. Crim. 149.

Believing that the facts are entirely sufficient to support the verdict and finding no error in the record, the judgment is in all things affirmed.

Affirmed.

ON MOTION FOR REHEARING.