Miller v. State

• Citation: 40 S.W. 313
• Parties: MILLER v. STATE.
• Decision Date: 28 April 1897
• Court: Texas Court of Criminal Appeals

40 S.W. 313

MILLER v. STATE.

Court of Criminal Appeals of Texas.

April 28, 1897.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

L. B. Miller was convicted of abortion, and appeals. Reversed.

Seay & Seay, R. T. Shelton, and A. I. Hudson, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of abortion, and his punishment assessed at confinement in the penitentiary for a term of seven years; hence this appeal.

The record contains 36 bills of exception, but only such will be considered as we deem necessary to a proper disposition of this case. A number of these bills (beginning with the first) relate to the testimony of Mrs. Allene Miller, formerly Miss Allene Turnage, appellant objecting to her testimony on the ground that she was his wife. The record shows without controversy that at the time of the alleged offense, to wit, on the 18th of November, 1895, the prosecutrix, then Miss Allene Turnage, was an unmarried woman; that on the 27th of January, 1896, she and the defendant were married. The indictment in this case was presented on the 8th of February, 1896, and the conviction occurred on the 8th of September, 1896. The record shows that said witness, Mrs. Allene Miller, testified, over appellant's objections, he insisting that she was his wife, and was not authorized or permitted to testify against him. The conviction was had mainly, if not entirely, upon her evidence. We presume the ruling of the judge authorizing her to testify was based upon one or two propositions: First, that the matters to which she was called to testify about, transpired before the intermarriage between prosecutrix and defendant; and, second, that her testimony was authorized, because the abortion was personal violence by the husband against her. At common law neither the husband nor the wife were admissible as witnesses in a case, civil or criminal, in which the other was a party. See 1 Greenl. Ev. § 334, and authorities cited in note 2. Our statute on the subject has modified the rule. See Code Cr. Proc. 1895, arts. 774, 775. We quote the last article, to wit: "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 statute has been construed with such strictness as that a wife, though introduced for the husband, cannot be cross-examined, except as to matters brought out and directly involved in the examination in chief. See Creamer v. State, 34 Tex. 174; Greenwood v. State, 35 Tex. 587; Washington v. State, 17 Tex. App. 197; Johnson v. State, 28 Tex. App. 17, 11 S. W. 667; Bluman v. State, 33 Tex. Cr. R. 43, 21 S. W. 1027, and 26 S. W. 75; Hoover v. State (Tex. Cr. App.) 33 S. W. 337; Jones v. State (Tyler term, 1896) 40 S. W. 807. We are not aware, however, that it has been construed with reference to transactions occurring prior to the marriage. At common law the principle of exclusion applies in its fullest extent, wherever the interest of either of the spouses is directly concerned. Where the defendant married one of the plaintiff's witnesses after she was actually summoned to testify in the suit, she was held incompetent to give evidence. See 1 Greenl. Ev. § 336. Mr. Greenleaf refers to the case of Pedley v. Wellesley, 3 Car. & P. 559. In that case it was insisted that a party to a suit could not, by marrying his adversary's witness, deprive him of the benefit of the evidence of such witness, and more particularly where the action had been commenced, and the party actually subpœnaed, before the marriage took place. The case of an underwriter was cited, in which it was held that a party to a suit cannot, by any act of his, deprive his adversary of the testimony of his witness, whether the act be laudable or otherwise. The court, however, held that the case of an underwriter was not analogous with the case of a married woman, she not being allowed to testify to transactions occurring before the marriage; and forms an exception to the general rule that neither a witness nor a party can, by his own act, deprive the other party of the right to the testimony of the witness. We have been referred to the case of State v. Evans (Mo. Sup.) 39 S. W. 462, which is much in point. That was a case where Evans was indicted for rape on a girl then under 14 years of age (which is the age of consent in Missouri). Subsequent to the alleged rape, he married the prosecutrix, and she was introduced as a witness against him over his objections. In that state there is a statute similar to our own, allowing the wife to testify in favor of the husband, but not against him. The facts in that case show said rape to have been...