Bramlette v. State

• Decision Date: 23 June 1886
• Citation: 2 S.W. 765
• Court: Texas Court of Appeals
• Parties: BRAMLETTE <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

2 S.W. 765

BRAMLETTEv.

STATE.¹

Court of Appeals of Texas.

June 23, 1886.

Appeal from district court, Bexor county.

Appellant was convicted of making an assault with intent to murder his wife, S. J. Bramlette, and was awarded a term of two years in the penitentiary. Defendant's wife was the principal witness against him. Her testimony was compulsory, and to the effect that she and defendant had had some domestic trouble prior to the evening of the assault. Defendant came home that evening under the influence of liquor, and a quarrel ensued between them over the custody of the children, during their agreed separation. He took a pistol from his coat pocket, which was discharged after the defendant remarked that both had better be dead, if they could agree no better than they did. Witness did not think the defendant intended to shoot. She thought the pistol was accidentally discharged. Witness did not want the defendant convicted. They had become reconciled, and she wanted him acquitted, that they might live together again.

Willson's Criminal Form No. 708, referred to in the second head-note, reads as follows: "Malice is a condition of mind which shows a heart regardless of social duty, and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken;" citing Harris v. State, 8 Tex. App. 90.

Shields & Shields, for appellant, maintained that the action of the trial court in compelling Mrs. Bramlette to testify, over her protest, was error.

Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

This appeal is from a conviction for an assault with intent to murder. The alleged injured party was the wife of the appellant.

1. On the trial the prosecution called the defendant's wife as a witness upon the stand, who, after being duly sworn, stated that she was the wife of the defendant, was unwilling to testify against her husband, and refused to do so. Defendant, by counsel, objected to witness testifying for the state, which objection was overruled, and the witness was instructed that she must testify, and directed to proceed with her testimony. Defendant saved his exception.

An exception to the rule that the husband and wife are incompetent to testify against each other is in the case of "a criminal prosecution for an offense committed by one against the other." If the offense is one committed by one against the other, then the injured party is competent to testify as a witness. If competent to testify, then such party can be forced to testify, as any other witness may be. Dumas v. State, 14 Tex. App. 465. A similar question, upon a similar state of facts, arose in the case of Turner v. State, 60 Miss. 351, and it was held that the wife is a competent witness against her husband in a prosecution for assault and battery committed by him on her person, although she objects to testify in the case, and that if it was the wife's privilege to testify or not, as she might elect, it was clear that appellant could not assign for error the action of the court in compelling her to give evidence over her objection, or, if the action of the court be error, it is the privilege of the witness, and not the legal right or immunity of defendant, which is impaired; citing 1 Greenl. Ev. § 45; 2 Phil. Ev. 941; Roscoe, Crim. Ev. 146; and Reg. v. Kinglake, 11 Cox, C. C. 499. In such a case, it is said that it is for the injury to the public, committed upon it through the person of the wife, that the husband is punished. It is the offense against the public for which he is tried. He is the offender of the public, and not the wife alone, and she is competent to testify as a witness for the public, and not as a witness for herself. It is a competency not to be waived by her, or affected by her desires or fears. The court did not err in its...