Bramlette v. State

White, Presiding Judge.

This appeal is from a conviction for an assault with intent to murder. The alleged injured party was the wife of the appellant.

1. On the trial the prosecution called defendant’s wife as a witness upon the stand, who, after being duly sworn, stated that she was the wife of the defendant,' was unwilling to testify against her husband, and refused to do so. Defendant, by counsel, 'objected to witness testifying for the State, which objection was overruled, and the witness was instructed that she must testify, and directed to proceed with her testimony. Defendant saved his exception.

An exception to the rule that the husband and wife are incompetent to testify against each other is in the case of “a criminal prosecution for an offense committed by one against the other.” If the offense is one committed by one against the other, then the injured party is competent to testify as a witness. If competent to testify, then such party can be forced to testify, as any other witness may be. (Dumas v. The State, 14 Texas Ct. App., 465.)

A similar question upon a similar state of facts arose in the case of Turner v. The State, 60 Mississippi,-351, and it was held that a wife is a competent witness against her husband in a prosecution for an assault and battery committed by him on her person, although she objects to testifying in the case, and that if it was the wife’s privilege to testify or not, as she might elect, it was clear that appellant could not assign for error the action of the court in compelling her to give evidence over her objection; or if the action of the court be error, it is the privilege of the witness, and not the legal right or immunity of defendant, which is impaired. (Citing 1 Greenl. Ev., sec. 45; 2 Phil. Ev., 941; Roscoe’s Crim. Ev., 146; and Reg. v. Kingslake, 11 Cobb C. C., 499.)

In such a case, it is said, that it is for the injury to the public committed upon it through the person of the wife, that the husband is punished. It is the offense against the public for which he is tried; he is the offender of the public, and not the wife alone, and she is competent to testify as a witness for the public, and not as a witness for herself. It is a competency not to be waived by her, or affected by her desires or fears. The court did not err in its ruling upon this question.

*619 Opinion delivered June 23, 1886.

2. The second bill of exceptions is untenable. The court sufficiently defines “malice” in the sixth paragraph of its charge to the jury.. (See Willson’s Crim. Forms, sec. 708, p. 332.)

3. The third bill of exceptions was to the omission of the court to submit in its charge to the jury the issues of aggravated assault, and simple assault and battery, and the law applicable thereto. In answer to this exception we say there was no question of aggravated or simple assault and battery legitimately arising upon the facts proved.

4. The fourth bill of exception complains of an omission of the court to submit to the jury the law with regard to intoxication of defendant at the time of the alleged assault, and how far it should be considered as affecting his mental condition and ability to form and entertain a criminal intent. In the seventh and eighth paragraphs of the general charge, the court sufficiently instructed the jury with regard to the specific intent essential to the commission of the crime, and there was no additional instruction asked in behalf of defendant with regard to the effect of drunkenness upon his mental condition. If defendant desired the jury should be informed as to the law bearing upon this question, he should have asked additional instructions covering the supposed defects or omissions in the general charge.

5. The fifth bill of exceptions is contradicted by the seventh and e ighth paragraphs of the charge of the court to the jury.

6. The sixth bill of exceptions is taken to the failure of the court to charge the reasonable doubt. The charge of the court was substantially, if not literally, in the language of the statute. (Code Crim. Proc., Art. 727.) This is not only all that the court is required to do, but is exactly what it should do in charging the reasonable doubt. (Massey v. The State, 7 Texas Ct. App., 563; Ham v. The State, 4 Texas Ct. App., 464; Walker v. The State, 13 Texas Ct. App., 618; Fury v. The State, 8 Texas Ct. App., 471; Schultz v. The State, 20 Texas Ct. App., 316.)

7. The seventh bill of exceptions is to the overruling of defendant’s motion for a new trial. This motion contained fifteen specific grounds, most of which have been already discussed in discussing the defendant’s bills of exceptions above, and none of the remaining grounds call for special notice at our hands.

Ho reversible error having been found in the record, the judgment is affirmed.

Affirmed.