Rios v. State

• Citation: 47 S.W. 987
• Parties: RIOS v. STATE.
• Decision Date: 23 November 1898
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

47 S.W. 987

RIOS v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1898.

Appeal from district court, Atascosa county; M. F. Lowe, Judge.

Miguel Rios was convicted of cattle theft, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J.

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

On the trial Mrs. Hettie Miller was introduced as a witness by the state. Her husband, Charley Miller, was separately indicted for the same offense of which the defendant was then on trial. Because of the pending indictment against her husband, it was urged that Mrs. Miller was not a competent witness against the defendant. Her testimony was to some extent material in making out the case against appellant; and it may be stated here, also, that it exonerated her husband. It is provided by statute that the husband and wife cannot testify against each other, but may be witnesses for each other. This case differs from the Bluman Case, 33 Tex. Cr. R. 43, 21 S. W. 1027, and 26 S. W. 75, in this: In that case the husband testified, and the wife was then used as a witness, and the conclusion reached under this state of case was that, because the husband was used as a witness in the case, therefore the wife should be used. Here the husband did not testify and the wife did. However, there was an agreement in this case made between the district attorney and the husband, by which his case was to be dismissed from the docket, and the reasons are stated in the bill of exceptions, but are not necessary to be noticed. As presented by the bill of exceptions and the record, the wife could not be used against her husband, either directly or indirectly, because there was no possibility of his being tried under the pending indictment. Under this agreement made between the husband and the district attorney, the pending case against said husband would have to be dismissed. While this is not exactly the same state of case as that of Camron v. State, 32 Tex. Cr. R. 180, 22 S. W. 682, yet, as we understand it, the principle is the same. Here, while there was no agreement that the husband should turn state's evidence, yet there was an agreement to dismiss this case, evidently for the purpose of obtaining the testimony of the wife in the trial of this appellant. If the decision of Camron v. State, supra, is correct, then the agreement could be enforced in this case. There was...