Terrell v. State

• Decision Date: 02 March 1921
• Docket Number: (No. 5956.)
• Citation: 228 S.W. 240
• Parties: TERRELL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 240

228 S.W. 240

TERRELL v. STATE.

(No. 5956.)

Court of Criminal Appeals of Texas.

March 2, 1921.

Appeal from Bexar County Court; Nelson Lytle, Judge.

R. L. Terrell was convicted of wife desertion, and he appeals. Reversed and remanded.

W. C. Linden, of San Antonio, and Fly & Ragsdale, of Victoria, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, P. J.

The appellant was convicted of wife desertion. See Penal Code, tit. 11, c. 9a.

In one of the subdivisions of the statute the wife is made a competent witness against her husband charged with this offense. See article 640c. This is not an amendment to article 795 of the Code of Criminal Procedure, wherein it is said that husband and wife "shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other." Section 36, art. 3 of the Constitution, declaring "no law shall be revived or amended by reference to its title; but * * * the section * * * amended, shall be re-enacted and published at length," is not applicable. Article 640c is complete within itself. Its effect may be to restrict the operation of article 795, but this alone does not render it obnoxious to the clause of the Constitution mentioned. The question is settled by the decisions of this court and the Supreme Court. See Clark v. Finley, 93 Tex. 177, 54 S. W. 343; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565; Harris' Ann. Texas Constitution, p. 275, note 10.

While the appellant was away from home a letter came addressed to him. His wife opened and read it. In her testimony she said:

"I told him about it, and he just laughed at the idea and said that it didn't make any difference to him; that this girl thought more of him than I did; that if I wanted his letters, he would have them sent to the house if I would let him read them first."

Over the appellant's objection the letter was introduced in evidence. It contained statements supporting the inference that the appellant had made love to the girl by whom the letter was written subsequent to his marriage.

The general rule governing such evidence is stated in the Cyclopedia of Law and Procedure, vol. 12, p. 434, as follows:

"Letters written by the person injured or by third persons, addressed to the accused and received by him, but never answered or acted on by him, are not admissible against him unless they are part of the res gestæ. Nor is his failure to answer them an admission of the truth of the statements contained in them. In this respect they differ from oral accusations, because otherwise the accused would be at the mercy of any letter writer whose name or address he did not know."

This is supported by numerous authorities; among them may be mentioned the following: People v. Colburn, 105 Cal. 648, 38 Pac. 1105; Commonwealth v. Edgerly, 10 Allen (Mass.) 184; Packer v. United States, 106 Fed. 906, 46 C. C. A. 35; Commonwealth v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596; Razor v. Razor, 149 Ill. 621, 36 N. E. 963; Learned v. Tillotson, 97 N. Y. 1, 49 Am. Dec. 508; State v. Crowder, 41 Kan. 101, 21 Pac. 208; Hollingsworth v. State, 80 Tex. Cr. R. 300, 189 S. W. 488; James v. State, 40 Tex. Cr. R. 195, 49 S. W. 401.

In the Hollingsworth Case, 78 Tex. Cr. R. 491, 182 S. W. 465, he was charged with incest with his niece, Cassie Dunn. A letter from her was introduced upon the theory that it had been received by him. It contained declarations inculpating him. It was written subsequent to the time the alleged offense was committed and related to past events. He had not replied to it, adopted it nor acted upon it. The trial court admitted it in evidence against him, and because thereof this court...