Johnson v. State
| Citation | 11 S.W. 34 |
| Parties | JOHNSON <I>v.</I> STATE. |
| Decision Date | 26 January 1889 |
| Court | Court of Appeals of Texas |
Appeal from Brazos county court; D. C. BARMORE, Judge.
Frank Johnson, convicted of aggravated assault, appeals.
J. A. Buckholts, for appellant. Asst. Atty. Gen. Davidson, for the State.
Appellant was tried and convicted in the lower court for aggravated assault upon one Sally King, who was his step-daughter. Over objections of defendant, his wife, who was the mother of the injured party, was introduced as a witness by the prosecution, and allowed to testify against him, as shown by bill of exceptions. A husband or wife may, in all criminal actions, be witnesses for each other, but they are expressly prohibited by statute from being witnesses against each other except in prosecutions for offenses committed by the one against the other. Code Crim. Proc. art. 735; Compton v. State, 13 Tex. App. 271; Thomas v. State, 14 Tex. App. 70. It is shown by the testimony of the wife that she left her husband on the day of the alleged assault upon her daughter; that she had not returned to or cohabited with him since; and that she did not intend to live with him again. Such conduct on her part, however, did not operate a dissolution of the marriage, or so alter the relation of the parties in contemplation of law as to render her a competent witness in the case against her husband. Clanton v. State, 20 Tex. App. 615; Johnson v. State, Id. 609. The assistant attorney general confesses error on behalf of the state in the ruling of the court in admitting the wife to testify, and judgment is reversed, and the cause remanded.
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...591 (Tex.Cr.App. 1910); Eads v. State, supra. In a fact situation much like that in the instant case it was held in Johnson v. State, 27 Tex.App. 135, 11 S.W. 34 (1889), that a wife was incompetent, in view of the statute, to testify against her husband for aggravated assault upon her daugh......
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