Woodall v. State

• Decision Date: 16 March 1910
• Citation: 126 S.W. 591
• Parties: WOODALL v. STATE.
• Court: Texas Court of Criminal Appeals

126 S.W. 591

WOODALL v. STATE.

Court of Criminal Appeals of Texas.

March 16, 1910.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

H. G. Woodall was convicted of false swearing, and he appeals. Reversed and remanded.

Sherrill, Mulkey & Hamilton, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was awarded a term of two years in the penitentiary on a charge of false swearing. He was brought into court and entered a plea of guilty. The judgment contains proper recitals under article 554 of the Code of Criminal Procedure. The statement of facts, complete, is as follows:

Bill Scott, witness for the state, testified as follows: "I am a member of the present grand jury, and was present in the grand jury room when the case against the defendant, H. G. Woodall, was investigated. Hessie Woodall, the wife of defendant, was before the grand jury; her father, Mr. Martin, was also before the grand jury; and I heard their testimony. From their testimony Hessie is under the age of 18 years. My recollection is they stated that she was about 15 years of age. She stated to the grand jury that she was not 18 years old, but was a little over 15; and she said she had so informed the defendant before he procured the marriage license. There were also other witnesses before the grand jury. I saw the affidavit that was made by defendant. It was to the effect that Hessie Martin was 18 years of age—was made by the defendant before S. L. Arnold, deputy clerk of the county court, Hunt county, Texas.

"It is agreed that the above and foregoing is a true and correct statement of all the facts proved upon the trial of the above cause, and that as soon as said witness left the stand the district attorney wrote the verdict herein rendered and handed same to N. Blankenship, a member of the jury, who signed the same as foreman, and the same was passed to the clerk and read, and that the jury did not retire from the jury box, nor did they deliberate in any manner upon the said verdict, nor did the said Blankenship speak to any other member of the jury before he signed the said verdict, nor was he elected foreman of the said jury, and that the jury did not consult among themselves in any manner, or speak to each other, concerning the case, before the verdict was rendered; but said verdict was signed by the said Blankenship upon the request of the district attorney, as above stated, and after the same was read by the clerk they were asked by the court if they agreed to that verdict, and they each signified their assent by a nod of the head."

It will be observed, under the above agreed statement of facts, that the only attempt at introducing evidence against appellant under his plea of guilty was the hearsay statements of Bill Scott as to, first, the fact that the wife of appellant was before the grand jury and stated that she was not 18 years of age, but was only a little over 15, and that she had so informed appellant before he procured the marriage license; second, that Mr. Martin, the father-in-law of appellant, was also before the grand jury, and that the witness Scott heard his testimony, and that from his testimony, and the testimony of the wife of appellant, appellant's wife was under 18 years of age at the time of procuring the license. He further testified that he saw the affidavit which was made by defendant, and the effect of it was to state that appellant's wife was under 18 years of age. The statements of the wife under the circumstances here detailed could not be used against her husband. See Brock v. State, 44 Tex. Cr. R. 335, 71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep. 859; Spivey v. State, 45 Tex. Cr. R. 496, 77 S. W. 444; Davis v. State, 45 Tex. Cr. R. 292, 77 S. W. 451. While there was no exception reserved to the statements of the witness Scott, yet the testimony of the wife, either directly or through hearsay, cannot be used by the state as a predicate for the conviction of the husband in cases of this character. The charge here was false swearing, and did not involve any act of violence towards the person of the wife. The question was directly adjudicated in the Brock Case, supra, that the testimony of the wife could not be used by the state against her husband, even though he did not interpose an objection. For a discussion of the matter we refer to the Brock Case. This doctrine was reaffirmed in Spivey v. State, supra. Nor do we believe that a grand juror can be used to detail before a jury hearsay statements of witnesses delivered before that body under the circumstances here...