Eads v. State

• Decision Date: 14 October 1914
• Docket Number: (No. 3231.)
• Citation: 170 S.W. 145
• Parties: EADS v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W. 145

EADS v. STATE.

(No. 3231.)

Court of Criminal Appeals of Texas.

October 14, 1914.

Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.

Elbert Eads was convicted of murder on implied malice, and he appeals. Reversed and remanded.

See, also, 147 S. W. 592.

G. H. Culp, of Gainesville, R. E. Taylor, of Henrietta, and J. L. Lackey and Clinton Small, both of Wellington, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder upon implied malice, and his punishment assessed at 15 years' confinement in the state penitentiary.

The court gave a very full and fair charge with one exception. The defendant testified to threats being communicated to him; two witnesses testified they had communicated the threats to defendant. The state did not concede that the threats had been made, but seriously contested that issue, and yet the court in his charge required the jury to find that the threats had been made, instructing them:

"Now if you shall find that the deceased had made threats against the life of defendant, and that such threats had been communicated to the defendant," etc.

This is not the law where there is an issue in the case as to whether or not the threats had been made, but if defendant had been told that threats had been made by deceased and he so believed, he would have the right to act, even though the threats had not in fact been made. Buckner v. State, 55 Tex. Cr. R. 517, 117 S. W. 802, and cases there cited. While the objections made to the charge at the time it was presented to counsel were not specific enough to call the court's attention to this error in the charge perhaps, yet we call attention to it so that it will not occur on another trial.

Appellant, in two bills of exception, complains of the action of the court in permitting the testimony of John Brown and Clark Hughes to be reproduced. The evidence sufficiently shows that both were beyond the jurisdiction of the court; that Brown is now a permanent resident of Oklahoma, and Hughes a resident of New Mexico. Whorton v. State, 152 S. W. 1083 and cases there cited. But the record before us does not disclose that there was any proof offered that the statements introduced in evidence were in fact the evidence of said witnesses. It appears that what is termed a stenographer's report of the evidence of the witnesses was introduced, but the stenographer who took the testimony did not testify in the case, and no person testified that this in fact was the testimony of the gentlemen named. Some proof should have been made that this was in fact their testimony on the former trial before the evidence should have been admitted.

By various bills of exception the following facts are shown: First. That while appellant was testifying he was asked the following question: "You know that under the law your wife cannot testify in this case unless you waive your objections to her testimony," and when appellant's counsel objected to the question, state's counsel remarked: "All the authorities hold that a wife can testify unless the defendant objects to same — we can tender this woman as a witness, and if they object, her mouth is closed but if they do not object, the law books say that the witness is competent." Second. After appellant had testified counsel for the state called Mrs. Eads, appellant's wife, around and had her take the witness stand, and forced appellant then and there in the presence of the jury to object to her testifying. And third, in his closing argument to the jury state's counsel argued to the jury that "appellant had closed the mouth of his wife by refusing to waive objections to her testimony with reference to the threats made which had been testified about, which she communicated to the defendant," etc. It was highly improper to permit state's counsel to call appellant's wife to the witness stand. Article 795 of the Code of Criminal Procedure provides that:

"The husband and wife may, in all criminal actions, be witnesses for each other; but they shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other."

This provision of the statute is discussed at length in Brock v. State, 44 Tex. Cr. R. 339, 71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep. 859, and the authorities digested, and it was there held that was a matter the person on trial could not waive, because the statute had provided that she was an incompetent witness; that she can be a witness for him, but not against him, and when called by him she can only be cross-examined about matters which he had elicited on direct examination. Of course, this would embrace matters which would tend to show that her testimony was false, but in no instance can the state first call the wife as a witness except in case of an offense committed by him against her. The rule as announced in the Brock Case, supra, has been adhered to in Davis v. State, 45 Tex. Cr. R. 292, 77 S. W. 451; Spivey v. State, 45 Tex. Cr. R. 496, 77 S. W. 444; Yeiral v. State, 56 Tex. Cr. R. 267, 119 S. W. 848; Woodall v. State, 58 Tex. Cr. R. 513, 126 S. W. 591.

Appellant on the trial of this case had testified that his wife had told him not to go after the things at deceased's (her father's) house, that her father would not allow appellant on the place, and had said if appellant did come on the place he (deceased) would kill him. Hildred Hill also testified that he was present and heard Mrs. Eads so tell appellant. This was one of the threats relied on by appellant to show deceased's state of mind towards him, and how the transaction really appeared to him at the time of the killing if deceased did the things appellant contended he had done. The state recognized the force of this testimony, and improperly sought to break the force of it. If after appellant and Hill had so testified and he did not see proper to call his wife as a witness, the fact he had not called her as a witness could be referred to by counsel for the state in their argument, as has been frequently decided by this court, for it was in his power to call her as a witness. Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1126; Battles v. State, 53 Tex. Cr. R. 202, 109 S. W. 195; Tabor v. State, 52 Tex. Cr. R. 387, 107 S. W. 1116; McMichael v. State, 49 Tex. Cr. R. 422, 93 S. W. 723; Richardson v. State, 44 Tex. Cr. R. 211, 70 S. W. 320, and cases cited. In many of the states it is held otherwise. Knowles v. People, 15 Mich. 408; Cole v. State, 75 Miss. 142, 21 South. 706; State v. Shouse, 188 Mo. 473, 87 S. W. 480, and cases cited. But in Texas the rule has become settled that it is not improper to refer to the fact that the defendant had failed to call his wife to substantiate his testimony when she is placed in position where she could do so, for the law gives him that privilege. However, we have never gone to the extent of holding that the state, while introducing its evidence, could so use the wife as to convey to the jury that, if permitted the wife would testify against the husband and give the lie to the testimony introduced by him and testified to by him. Appellant had not closed the mouth of his wife — the law did that. Whether it is best for the law to do so may be a question about which minds differ, but we do not think any one can question that it is the law that does so now.

Neither, under the authorities, was it a provision of law which appellant could waive in behalf of the state, and counsel for the state was in error in so stating in the presence of the jury, and it was highly improper for him to ask appellant while on the witness stand "if he, appellant, would waive his objections and permit his wife to testify in behalf of the state." This was unfair cross-examination, for the law does not sanction him giving such waiver. He had killed his wife's father. If he did not desire his wife to testify that continued friendly relations might continue between her and her mother, this was commendable in him. If, on the other hand, his wife had turned against him because he had killed her father, the law says that the communications that took place between her and appellant should not be disclosed by the wife, and she cannot testify against him now that, perhaps, she feels unfriendly towards him because he is charged with killing her father. The state by its remarks and by its conduct could not have done otherwise than to have created the impression on...