Moore v. State

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation75 S.W. 497
PartiesMOORE v. STATE.
Decision Date23 June 1903
75 S.W. 497
Court of Criminal Appeals of Texas.
June 23, 1903.

Appeal from District Court, Hill County; Wm. Poindexter, Judge.

A. J. Moore was convicted of murder, and he appeals. Reversed.

C. M. Smithdeal, for appellant. B. Y. Cummings, Asst. Co. Atty., C. F. Greenwood, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.


This is the second appeal from a conviction of murder. Moore v. State (Tex. Cr. App.) 72 S. W. 595. While testifying in his own behalf, appellant was permitted, over objections, to testify that he had married, on the day before his trial began, the state's witness Susie Jones. The bill is explained by the court as follows: "The court was then and is now of the opinion that the question and answer were proper, as the state had a right to show why Susie Jones, the only immediate eyewitness to the homicide, was not put on the stand; and this tended to show that fact." That appellant had married the main state's witness on the day before his trial began is a legitimate subject of inquiry, and it was not error to require defendant to state that fact while testifying in his own behalf, even though he married her, as insisted by the court, for the purpose of suppressing her testimony.

The state also placed Sheriff Satterfield upon the stand, and asked him if Susie Jones was then in attendance upon the court. He stated he did not know whether she was present or not, whereupon the county attorney required the witness to go out and ascertain whether she was present in attendance upon the trial. After going to the witness room, he returned with Susie Jones. After he had brought her in the courtroom, the county attorney placed her upon the witness stand. Objection was urged because it had already been shown that she was the wife of appellant, and the state had no right to call her to the witness stand; that it was done for no legitimate purpose, and only for the purpose of prejudicing defendant in the minds of the jury. The court failed to rule upon these objections, "and the county attorney proceeded to ask said Susie Jones certain questions with reference to this case; and the defendant was compelled to and did object to said Susie Jones testifying on the ground that she was his wife, and therefore

Page 498

not a competent witness." The court finally sustained this objection. The court says that the reason he failed to rule upon the first objection was that there was nothing upon which to rule, "and the court could not know what state's counsel wanted to know what Susie Jones was present for, and did not feel authorized and required to prevent the county attorney from asking the sheriff, in the presence of the jury, whether Susie Jones was present and in attendance upon the court, nor from placing her on the witness stand. Defendant, while on the stand, had stated that he had married Susie the day before, but this was by no means conclusive; and when Susie was placed on the stand, and objection made to her testifying on the ground that she was the wife of defendant, the court then asked her if she had been married to defendant, and upon her answering that she had been and was his wife the court sustained the objection. The state certainly had the right to explain why the only immediate eyewitness to the shooting was not placed upon the stand by the state. Besides this, the state had the right to show by her that she was not the wife of defendant, and competent to testify; and, if she had answered that she had not been married to defendant and not his wife, she could have testified, notwithstanding defendant's statement, the question being one for the jury in case of an issue of the kind." The witness Satterfield could have been required to testify that Susie Jones was in attendance upon the trial and in the jury room, and the state could have shown by any witness other than appellant's wife the matters about which the inquiry was made. The fact that appellant had married Susie Jones the day prior to his trial was also the subject of legitimate inquiry from proper sources. But here the statute expressly prohibits the use of the wife as a witness against her husband; and this though he had married her for the express purpose of suppressing her testimony against him. Miller v. State, 37 Tex. Cr. R. 575, 40 S. W. 313; U. S. v. White, 4 Utah, 499, 11 Pac. 570. It makes no difference at what time the relation of husband and wife begins. The exclusion of their testimony under our statute, and to its fullest extent, operates wherever the interests of either are directly concerned (1 Greenleaf, §§ 334, 336), and this although he married the witness after she was placed under process (Redley v. Wellesley, 3 Car. & Pay. 558; State v. Armstrong, 4 Minn. 335 [Gil. 251]). And the question of public policy is not an argument to the contrary. Public policy must be in accord with our statutory enactment. When the marriage ceremony is performed, no matter what the motive was or may be, the witness thenceforward becomes the lawful wife of defendant, and is prohibited under our statute from testifying against her husband, except where the offense is by the husband against her person. It will be...

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30 cases
  • Ex Parte Beville
    • United States
    • Florida Supreme Court
    • 23 Noviembre 1909
    ... ... disability and incompetency as a matter of privilege ... By ... statutes in this state the husband and the wife are made ... competent and compellable witnesses for or against each other ... in both civil and criminal cases ... McGill v. McGill, 19 Fla. 341; ... Storrs v. Storrs, 23 Fla. 274, 2 So. 368; ... Schnabel v. Betts, 23 Fla. 178, 1 So. 692; Moore ... v. State, 45 Tex. Cr. R. 234, 75 S.W. 497, 67 L. R. A ... 499, 108 Am. St. Rep. 952, 2 Am. & Eng. Ann. Cas. 878, note ... Let us ... ...
  • Engberg v. Meyer
    • United States
    • Wyoming Supreme Court
    • 17 Octubre 1991
    ...S.W.2d 580 (Tex.Cr.App.1987); Johnigan, 482 S.W.2d 209; Caldwell v. State, 162 Tex.Crim. 486, 287 S.W.2d 176 (1956); Moore v. State, 45 Tex.Crim. 234, 75 S.W. 497 (1903); Wilson v. Com., 157 Va. 962, 162 S.E. 15 (1932). Cf. Haselhuhn, 727 P.2d 280 (Urbigkit, J., dissenting). See also De Ges......
  • San Fratello v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 20 Enero 1965
    ...Vol. 3 p. 102; State v. McGinty, 14 Wash.2d 71, 126 P.2d 1086; People v. Trine, 164 Mich. 1, 129 N.W. 3, 6; Moore v. State, 45 Tex.Cr.R. 234, 75 S.W. 497, 67 L.R.A. 499; Lynn v. State, 113 Tex.Cr.R. 637, 21 S.W.2d 1042; Davis v. State, 160 Tex. Cr.R. 138, 268 S.W.2d 152; Hignett v. State, 1......
  • State v. Levy
    • United States
    • Iowa Supreme Court
    • 18 Julio 1968
    ...the prosecution in this case the motives ascribed to the state's attorney in the case of Moore v. State of Texas, 45 Tex.Cr.R. 234, 75 S.W. 497, 498, 67 L.R.A. 499, 108 Am.St.Rep. 952, 2 Ann.Cas. 878, the following quotation aptly expresses our views upon the situation before us: "The fact ......
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