Hilton v. State

• Citation: 191 S.W.2d 875
• Decision Date: 19 December 1945
• Docket Number: No. 23250.,23250.
• Parties: HILTON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 875

191 S.W.2d 875

HILTON v. STATE.

No. 23250.

Court of Criminal Appeals of Texas.

December 19, 1945.

Commissioners' Decision.

Appeal from District Court, Childress County; Luther Gribble, Judge.

Lorene Hilton was convicted for bigamy, and she appeals.

Reversed and remanded.

J. Ross Bell, of Childress, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is bigamy. The punishment is assessed at confinement in the state penitentiary for a term of two years.

The record reflects that on the 3rd day of June, A.D., 1939, appellant was legally married to S. C. Hilton, and to them two children were born; that in December of 1943, her husband joined the U. S. Navy. Thereafter, on the 27th day of March, 1945, while her husband was serving his country in the Armed Forces, she married one W. J. Lockard. Both of said marriages were abundantly established by uncontradicted oral and record evidence. Her defense was that of a mistake of fact, and in support thereof she testified on direct examination by her attorney that her husband, S. C. Hilton, was cruel to her; that he whipped her and abused her; that by reason of his harsh treatment she did not live with him but about two or two and one-half years; that in the month of March, 1944, her mother-in-law and sister-in-law sought to take her children from her in a legal proceeding but the court awarded them to her; that since the court gave her the children she believed that she had been granted a divorce and that she was free to marry again; that it was her understanding that only in divorce proceedings has the court the legal authority and power to make proper disposition of minor children. To contradict and combat her testimony, the District Attorney, in his cross-examination of her, handed her two letters and asked her if she had not written them to her husband, to which she replied that she had. He then, in the presence and hearing of the jury, quoted from one of the letters as follows: "Good morning to the sweetest sailor in Uncle Sam's Navy," and inquired of her if she made that statement, to which she replied, "I imagine it was my husband." An objection was timely made to the question and answer sought to be elicited on the ground that it was a privileged communication between herself and her husband, but the objection was overruled. He then quoted from said letter, in the presence and hearing of the jury, as follows:

"Believe it or not, I've not even had a beer to drink since way before Chistmas, and have almost stopped smoking again. Boy, I'm improving. * * * Am going to send the girls some money so they can buy a new dress apiece. * * * Those are my girls. * * * Am going to send them all their check from now on * * * so when you come back, they can't say, `Well, where did things go?' * * * We are praying for you and waiting for your safe return. * * *

"Lots of love, as ever, your wife."

Notwithstanding the fact that this evidence was elicited from her for the purpose of impeachment, yet it contravened Article 714, C.C.P., which provides as follows:

"Neither husband nor wife shall, in any case, testify as to communications made by one to the other, while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation existed, except in a case where one or the other is prosecuted for an offense; and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial. 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."

In the present instance, the court should have sustained appellant's objection to the introduction of the evidence. Appellant had made the written statement to her husband, hence it was a privileged communication and could not be used against her.

In the case of Hearne v. State, 50 Tex. Cr.R. 431, 97 S.W. 1050, this court said:

"Upon the trial the court permitted the introduction in evidence of certain letters, 10 or 12, alleged to have been written subsequent to the marriage of appellant with C. Wilson, which letters were written by appellant to her. The letters were admitted without any objection on the part of appellant. Subsequently appellant moved to exclude the same from the consideration of the jury, on the ground that they were privileged communications by husband to wife. * * * We hold that these letters were inadmissible. Letters of the wife to the husband, or husband to the...