Moore v. State

This is the second appeal from a conviction of murder. Moore v. State, 44 Tex.Crim. Rep.. While testifying in his own behalf appellant was permitted, over objections, to testify that he had married, on the day before his trial began, the State's witness Susie Jones. The bill is explained by the court as follows: "The court was then, and is now, of opinion that the question and answer were proper, as the State had a right to show why Susie Jones, the only immediate eye witness to the homicide, was not put on the stand, and this tended to show that fact." That appellant had married the main State's witness on the day before his trial began is a legitimate subject of inquiry, and it was not error to require defendant to state that fact while testifying in his own behalf, even though he married her, as insisted by the court, for the purpose of suppressing her testimony.

The State also placed Sheriff Satterfield upon the stand and asked him if Susie Jones was then in attendance upon the court. He stated he did not know whether she was present or not. Whereupon the county attorney required the witness to go out and ascertain whether she was present in attendance upon the trial. After going to the witness room, he returned with Susie Jones. After he had brought her in the courtroom, the county attorney placed her upon the witness stand. Objection was urged because it had already been shown that she was the wife of appellant, and the State had no right to call her to the witness stand; that it was done for no legitimate purpose, and only for the purpose of prejudicing defendant in the minds of the jury. The court failed to rule upon these objections, "and the county attorney proceeded to ask said Susie Jones certain questions with reference to this case. And the defendant was compelled to and did objct to said Susie Jones testifying, on the ground that she was his wife, and therefore not a competent witness." The court finally sustained this objection. The court says that the reason he failed to rule upon the first objection was that there was nothing upon which to rule, "and the court could not know what State's counsel wanted to know what Susie Jones was present for, and did not feel authorized and required to prevent the county attorney from asking the sheriff, in the presence of the jury, whether Susie Jones was present and in attendance upon the court; nor from placing her on the witness stand. Defendant while on the stand had stated that he had married Susie the day before, but this was by no means conclusive; and when Susie was placed on the stand and objection made to her testifying on the ground that she was the wife of defendant, the court then asked her if she had been married to defendant. And upon her answering that she had been and was his wife, the court sustained the objection. The State certainly had the right to explain why the only immediate eye witness to the shooting was not placed upon the stand by the State. Besides this, the State had the right to show by her that she was not the wife of defendant and competent to testify, and if she had answered that she had not been married to defendant and was not his wife, she could have testified, notwithstanding defendant's statement, the question being one for the jury in case of an issue of the kind." The witness Satterfield could have been required to testify that Susie Jones was in attendance upon the trial and in the jury room; and the State could have shown by any witness other than appellant's wife the matters about which the inquiry was made. The fact that appellant had married Susie Jones the day prior to his trial was also the subject of legitimate inquiry from proper sources. But here the statute expressly prohibits the use of the wife as a witness against her husband; and this though he had married her for the express purpose of suppressing her testimony against him. Miller v. State, 37 Tex.Crim. Rep.; United States v. White, 4 Utah 499 . It makes no difference at what time the relation of husband and wife begins. The exclusion of their testimony, under our statute, and to its fullest extent, operates wherever the interests of either are directly concerned. 1 Greenl., secs. 334, 336. And this although he married the witness after she was placed under process. Redley v. Wellesley, 3 Car. P., 558; State v. Armstrong, 4 Minn. 335. And the question of public policy is not an argument to the contrary. Public policy must be in accord with our statutory enactment. When the marriage ceremony is performed, no matter what the motive was or may be, the witness thenceforward becomes the lawful wife of defendant, and is prohibited under our statute from testifying against her husband, except where the offense is by the husband against her person. It will be observed in this case that the county attorneycalled the witness in behalf of the State and asked her several questions in regard to the case, when, upon objection by appellant that she was his wife, the court then asked her the question if she was his wife, and receiving an affirmative reply, excused her from the witness stand. This whole proceeding seems to have been a spectacular performance to force defendant to object to his wife testifying against him, in order to get the benefit of her testimony thus far in aid of the supposition and theory that appellant had married her to suppress her testimony. The point insisted upon by the State in regard to this whole matter of proving the recent marriage of appellant to Susie Jones was to convince the jury, first, that Susie Jones was the only eyewitness to the homicide for which appellant was being tried; second, that he had married her for the express purpose of suppressing her testimony; and, third, her evidence was of a damaging character to him. Any fact drawn from the wife proving or tending to prove that appellant had married her for the purpose of suppressing her testimony was directly against him. The county attorney had no right to call her as a witness against him. It is thoroughly demonstrated by the fact that appellant had married her; and if the court and the county attorney were not satisfied with the statement of appellant that he had married the witness, it was a matter easily ascertained without calling the wife, and the good or bad faith of appellant in marrying her, and whether the court believed what the defendant testified in regard to it, would make no difference. The fact that she was the wife of defendant put the seal upon her lips and excluded her being called as a witness against him. The fact that appellant had married the witness, and the further fact that it was done for the purpose of suppressing her testimony, were so intimately blended under the peculiar facts that they could not be separated; and the fact that he had married her was one of the main facts relied upon by the State to show appellant's act in what the State contended was suppressing the testimony of the wife. It is well settled in cases of bigamy that the lawful wife can not be called to prove her marriage with the accused, nor for the purpose of identifying him. Boyd v. State, 33 Tex.Crim. Rep., and authorities cited; Law of Evidence, by Burr W. Jones, vol. 3, sec. 752, authorities collated in note 1; see, also, sec. 753, note 18. There is no question of the injurious effect of this action of the county attorney as sustained by the court, because it tended to uphold with fearful effect the contention of the State that, by reason of his marriage with the witness the day before, his purpose was to suppress her testimony, and that her evidence was of a seriously damaging effect against him. It was admitted upon the theory that it was a suppression of the testimony, and the wife was the most important witness in regard to the killing; and it would seem that the State placed the wife on the stand to get whatever of benefit there could arise from the objection urged by appellant that she was his wife, in support of the theory of suppression of evidence. This is made patent by the reason it was the subject of considerable portion of the argument of State's counsel before the jury. It was held in Brock's case,44 Tex. Crim. 335, 71 S.W. Rep., 71, that the use of the wife against accused was reversible error, whether exception was reserved or not. Certainly it could not be held less an error where appellant was urging his objection from the time this matter became involved in the case until its final termination. Because of this error the judgment is reversed and the cause remanded.

Reversed and remanded.