Curd v. State
| Decision Date | 28 January 1920 |
| Docket Number | (No. 5638.) |
| Citation | 217 S.W. 1043 |
| Parties | CURD v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from County Court at Law, Harris County; Roy F. Campbell, Judge.
F. J. Curd was convicted of willfully refusing to support his two minor children, and he appeals. Affirmed.
B. L. Palmer, of Houston, for appellant.
E. T. Branch, Cr. Dist. Atty., of Houston, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
Appellant was convicted in the county court at law No. 2, of Harris county, Tex., of the offense of willfully refusing to support his two children, aged respectively, one and two years, and his punishment fixed at a fine of $100 and six months' confinement in the county jail.
The date of appellant's trial was May 27, 1919. His divorced wife was a witness against him, and to her testimony objection was urged by bill of exceptions No. 1. Therefrom it appears that when said wife was placed on the stand by the state she stated that she was the wife of defendant until May 17, 1919, whereupon appellant objected to her giving any testimony as to matters transpiring prior to said date, the ground of said objection being stated in the bill as follows:
"Because she, having been defendant's wife at the time of the occurrence of the things concerning which she was asked to testify, came into possession of her knowledge concerning such matters as the wife of defendant; that all such knowledge was hers by reason of the marital relation, and came to her through privileged communications concerning which she could not lawfully testify against her husband except for some offense of violence against her own person."
The objection so stated in said bill is not tenable in any event. The divorced wife of one accused is competent against him in any character of case, and she may testify to any matters which are not confidential communications, and the mere fact that she was his wife when the matters sought to be elicited occurred would not prima facie make such matters privileged. Branch's Ann. P. C. § 151, and authorities cited; White v. State, 40 Tex. Cr. R. 371, 50 S. W. 705; Cole v. State, 48 Tex. Cr. R. 446, 88 S. W. 341; Bryan v. State, 63 Tex. Cr. R. 200, 139 S. W. 981.
We further observe that the law making the wife incompetent to testify against her husband as to privileged communications is purely statutory (see articles 794, 795, Vernon's C. C. P.), and that a subsequent enactment to those mentioned above makes the husband or wife entirely competent to testify to all relevant facts in a prosecution for wife desertion, or for failure to support the minor children, by the terms of the act under which this charge was laid (see article 640c, Vernon's Penal Code).
It is undisputed in this case that appellant and his wife separated in December, 1918, and that later he filed a suit for divorce; that the attorney who represented appellant in the bringing of said divorce suit drew up an agreement for the parties, which was to be incorporated in any judgment rendered; that appellant became dissatisfied with said attorney and procured another, whose name did not appear in the proceedings, and obtained his divorce without incorporating said agreement in the judgment, and without further notice of any kind to his wife that they were going to take up and try said case; that on the same day the divorce was granted appellant he married one Delma Green, to whom the evidence cogently suggests that he had been paying attentions even while living with his former wife; that at the time of the separation in December, 1918, because of having no money or means of support, the wife and two little children of appellant were taken into the home of his father, and by him supported; that the father testified as a witness for the state herein, giving evidence to the effect that his daughter-in-law came to his home on the day of said separation because appellant drove her away from their home when she was sick, and that...
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Allen v. State, B14-86-101-CR
...of the accused when the matter sought to be elicited occurred would not prima facie make such matters privileged. Curd v. State, 217 S.W. 1043 (Tex.Crim.App.1920); Bruni, 669 S.W.2d at In this instance, appellant and her ex-husband were divorced at the time of trial. Thus, the ex-husband wa......
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Fulton v. State
...was subsequent to June 15, 1929, as to make same admissible. Noodleman v. State, 74 Tex. Cr. R. 611, 170 S. W. 710; Curd v. State, 86 Tex. Cr. R. 552, 217 S. W. 1043; Reid v. State, 88 Tex. Cr. R. 364, 226 S. W. Objection was also made to proof of the contents of a will which purported to d......
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Foster v. State, 46181
...did not violate the provisions of Article 38.11, Vernon's Ann.C.C.P. Robinson v. State, Tex.Cr.App., 487 S.W.2d 757; Curd v. State, 86 Tex.Cr.R. 552, 217 S.W. 1043. The rule is well stated in 1 Branch's Ann.P.C.2d, p. 180, Sec. 173, as 'The divorced wife of a defendant is a competent witnes......
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Bruni v. State
...wife of the defendant when the matter sought to be elicited occurred would not prima facie make such matters privileged. Curd v. State, 217 S.W. 1043 (Tex.Cr.App.1920). Where the validity of the marriage is in issue, as for example whether a common law marriage existed, the Court of Crimina......