Davis v. State

BBOOKS, Judge.

Appellant was convicted of murder in the second degree, and his punishment assessed at five years confinement in the penitentiary.

Upon the trial the State proved by Sibbie Eobinson the following:

*296 “I am the daughter of Ed Gilder, deceased, and was prior to and at the time of the killing of Ed Gilder the wife of defendant, John Davis, but have since the death of Ed Gilder married a man by the name of Bobertson. I was at the house of Ed Gilder at the time he was killed, down at Aunt Emily Ben’s, and did not see the shooting. It was at Aunt Emily Ben’s, on the little gallery of the little house used by her for the purpose of amusement and giving parties. He was lying on his side and his entrails were out. He had his good mind. He was talking.” Q. “Did he say anything with reference to his condition?” A. “He said, 'Sweetheart, you begged me to stay at home, but I refused to do so. I am shot. John Davis did it. He slipped up and shot me. He did it with that old gun he had.’ He said it snapped twice before it fired. He said he was a dead man. He was talking to my mother, Lizzie Gilder, at the time. Just before defendant went to Aunt Emily Ben’s to live he and I, as husband and wife, were living in a little house of ours. After our marriage we had lived about three months in the house with deceased, Ed Gilder, and his wife. It was about three weeks before the killing of Ed Gilder that John Davis had gone to Aunt Emily Ben’s to live.” Q. “At the time you left your father’s house, as the wife of John Davis, what was the conduct of John Davis to your father ?” A. “One night when father was sick, defendant told me to hang his overalls by the fire to dry. I did so, and about 2

o’clock in the night he wanted me to get up and go after his overalls. I told him I would not, because it was not time for him to go to work. He said, ‘That is what I say about a lot of damn fools; I have a good notion to get my gun and kill the whole bunch.’ Then papa, from the other room, said, 'Davis, don’t make so much noise; I am as sick as I can be.’ Defendant kept fussing and told deceased if he did not like it he could help himself. Defendant attempted to get his gun, and get in the room. This is all he did.”

At the time this testimony was introduced appellant reserved no exception, nor was any motion made after its introduction to exclude the same from the consideration of the jury; nor was any bill of exceptions reserved in any way to its introduction. It is urged for the first time in this court as a reason for the reversal of this case.

Article 774 of the Code of Criminal Procedure provides: ““Neither husband nor wife shall in any case testify as to communications made by one to the other while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while -the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense, and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial.” In Brock v. State, 71 S. W. Rep., 20 , construing article 775 of the Code of Criminal Procedure, this court held that the testimony of the husband or wife against the other would not be admissible, and its admis *297 sion would constitute reversible error whether excepted to or not, nor could one testify against the other, even if that one consented to the admission of the testimony. It will be noted from the above that appellant was talking to his wife at the time he made the threats against deceased; and hence her testimony is a communication made by the husband to the wife, which is inhibited by the letter and spirit of article 774, supra. We see no reason here, if the testimony and statement held by this court to be reversible error in the Brock case, supra, without bill of exception, why the evidence disclosed should not be equally so. While the record shows that the parties were divorced, yet the article under consideration precludes her testifying to any communication made to her by her husband regardless of said divorce. Therefore it follows that the court erred in permitting this testimony to be introduced. For the reasons at length on this subject see Brock’s case, supra.

Bill number 3 complains that the State was permitted to ask witness Lizzie Gilder, wife of deceased, if she had ever told anybody that deceased had a pistol that night, and she was permitted to answer that she had not. A witness that has not been impeached by the adverse party can not be corroborated by showing that she has made the same-statement testified to at other times to other parties. This witness was not impeached, and the bill so shows. Riojas v. State, 36 S. W. Rep., 268 ; Doucette v. State, 45 S. W. Rep., 800 ; Red v. State, 46 S. W. Rep., 409 .

The charge of the court, when considered as a whole, does not present any reversible error; at least such error as was injurious to appellant. Appellant insists that the court presented issues, suggesting adequate cause, not raised by the evidence. Without going into details, we would suggest that on another trial adequate cause charged upon should be the cause brought out in the evidence.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.