MARTIN, Judge.
Offense murder, punishment twenty-five years in the penitentiary.
A former appeal of this case is reported in 248 S. W., p. 40, where there will be found a full statement of the facts.
Appellant strenuously insists that there was error in forcing the appellant to testify while a witness for himself that he had been married and separated from his wife prior to his living with deceased and that he had never been divorced. This question would appear serious upon a casual reading of the author-; ities. Due to the rather frequent recurrence of this particular question and the present condition of the authorities with reference thereto, we have endeavored to give it a painstaking investigation.
There are two lines of authorities dealing with this exact question, one in homicide and assault cases, and the other in rape cases. We will briefly review these.
In Webb v. State, 36 Tex. Crim. Rep. 41, appellant was indicted for aggravated assault upon his wife and the court speaking through Judge Hurt held that testimony was inadmissible that he had been married and divorced as many as four times, the court observing that it may have been prejudicial in view of the penalty assessed, which was a fine of $500 and one year in jail.
In the next case of Jennings v. State, 42 Tex. Crim. Rep. 78, the appellant was charged with killing his stepson and was forced to testify over objection that he had had three wives; that the first one died; the second one quit him; and the third one obtained a divorce from him. Judge Henderson, delivering the opinion, said that its tendency could only prove hurtful to appellant and when this is the case the only safe rule is to reverse the judgment. Judge Brooks dissented because the error was harmless.
Stripling v. State, 47 Tex. Crim. Rep. 117, was an aggravated assault case and the court held' this character of testimony harmless in view of the minimum punishment assessed.
The case of Hightower v. State, 53 Tex. Crim. Rep. 487, was an assault to murder case, in the trial of which the state proved that appellant was married previously to a woman by the name of Ada, and then to a woman by the name of Mary, from both of whom he was separated and divorced, and was married also to a woman by the name of Catherine, who died and whose funeral he refused to attend. The court held this testimony inadmissible in that it could serve only to prejudice the rights of appellant.
The case of Fischel v. State, 14 S. W. 391, was an assault to murder case on one Wasseman, whom the husband charged with being responsible for the institution of divorce proceedings by his wife. One Meyers testified that the defendant told him he had had four wives. This was held inadmissible without any discussion further than to say that the same was prejudicial.
Lasater v. State, 88 Tex. Crim. Rep. 452, was a manslaughter conviction and the court speaking through Judge Lattimore on motion for rehearing, says: “We have concluded that it was material error to allow the state to place before the jury facts relative to the marriage of appellant and that he had been sued by each of his wives for divorce,” citing the Webb, Hightower and Jennings cases, supra.
It will be noted that in all of the above cases it was proven that appellant had been married several times and in all of them but one had had divorce suits. We have not found any case „ where a reversal was ordered because of proof of only one marriage, unattended by other prejudicial circumstances.
Rape cases discussing this question are as follows:
In Smith v. State, 44 Tex. Crim. Rep. 137, a reversal was ordered where it was proven over objection that appellant had a wife and two children, there being in this case no issue of the fact of intercourse. Smith v. State, 74 S. W. 556, is the same case as above.
Wilkerson v. State, 131 S. W. 1108, was a case of rape by fraud, one of the fraudulent representations by appellant toprosecutrix being that he was a single man. The court held that in view of the charge it was permissible to prove that he was a married man but error to prove that he had children.
In the case of Battles v. State, 140 S. W. 783, the court speaking through Judge Ramsey, says: “It became not only admissible, but highly important, to prove the fact that appellant was at the date and time of the intercourse a married man, as lending support to the state’s contention, and as evidence of a line of conduct out of harmony with any innocent purpose.” In this case the act of intercourse was in dispute and the female under fifteen years of age.
Judge Harper in the case of Smith v. State, 188 S. W. 984, held that,the admission of this character of testimony would not be error since it was necessary to show that he was not married to the prosecuting witness. No authorities are cited by him and his language appears to be in precise conflict with the case of Smith v. State, 44 Tex. Crim. Rep. 137.
In the recent case of McDuff v. State, 103 Tex. Crim. Rep. 668, it was held inadmissible to prove that appellant had a wife and two children, and in the Hagood case, 292 S. W. 904, it was held admissible to prove that appellant was a married man, it appearing that same was res gestae.
From the above it will be noted that such character of testimony has not uniformly been held inadmissible, nor could there be any reason for so holding as applied to all cases irrespective of the facts proven. The materiality and prejudicial character of a given fact must be measured by its relation to the entire case. Of necessity it cannot be detached and isolated from all of its surroundings and thus measured to determine its prejudicial character. So, the above testimony, as any other, must
be considered in its relation to all the evidence introduced. Thus considered, its admission, in our opinion, was not harmful.
The state’s theory and evidence was that a criminal intimacy existed between appellant and the wife of deceased and that this furnished the motive for the killing in which no self-defense existed. Two issues were thus tendered for determination: (1) That of criminal intimacy, and (2) that of homicide without justification.
Upon the first issue the inference of criminal intimacy alone is open for determination, the fact upon which it rests being admitted, namely, that appellant and the wife of deceased slept in a room alone together in a hotel in the little town of Rotan. The appellant admits this, leaving only the inference of a criminal intimacy from this admitted fact to be found by the jury. Would proof of his then having a lawful wife likely cause the jury to resolve this inference against him? Rather it would seem that proof of an existing marital obligation tend somewhat to render the existence of such intimacy less probable. Keeping in mind the important fact that appellant admits the truth of the state’s evidence of the hotel episode, we cannot believe that the conclusion to be drawn therefrom would likely be adversely influenced by proof of a marital status which did not comport with such criminal conduct.
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MARTIN, Judge.
Offense murder, punishment twenty-five years in the penitentiary.
A former appeal of this case is reported in 248 S. W., p. 40, where there will be found a full statement of the facts.
Appellant strenuously insists that there was error in forcing the appellant to testify while a witness for himself that he had been married and separated from his wife prior to his living with deceased and that he had never been divorced. This question would appear serious upon a casual reading of the author-; ities. Due to the rather frequent recurrence of this particular question and the present condition of the authorities with reference thereto, we have endeavored to give it a painstaking investigation.
There are two lines of authorities dealing with this exact question, one in homicide and assault cases, and the other in rape cases. We will briefly review these.
In Webb v. State, 36 Tex. Crim. Rep. 41, appellant was indicted for aggravated assault upon his wife and the court speaking through Judge Hurt held that testimony was inadmissible that he had been married and divorced as many as four times, the court observing that it may have been prejudicial in view of the penalty assessed, which was a fine of $500 and one year in jail.
In the next case of Jennings v. State, 42 Tex. Crim. Rep. 78, the appellant was charged with killing his stepson and was forced to testify over objection that he had had three wives; that the first one died; the second one quit him; and the third one obtained a divorce from him. Judge Henderson, delivering the opinion, said that its tendency could only prove hurtful to appellant and when this is the case the only safe rule is to reverse the judgment. Judge Brooks dissented because the error was harmless.
Stripling v. State, 47 Tex. Crim. Rep. 117, was an aggravated assault case and the court held' this character of testimony harmless in view of the minimum punishment assessed.
The case of Hightower v. State, 53 Tex. Crim. Rep. 487, was an assault to murder case, in the trial of which the state proved that appellant was married previously to a woman by the name of Ada, and then to a woman by the name of Mary, from both of whom he was separated and divorced, and was married also to a woman by the name of Catherine, who died and whose funeral he refused to attend. The court held this testimony inadmissible in that it could serve only to prejudice the rights of appellant.
The case of Fischel v. State, 14 S. W. 391, was an assault to murder case on one Wasseman, whom the husband charged with being responsible for the institution of divorce proceedings by his wife. One Meyers testified that the defendant told him he had had four wives. This was held inadmissible without any discussion further than to say that the same was prejudicial.
Lasater v. State, 88 Tex. Crim. Rep. 452, was a manslaughter conviction and the court speaking through Judge Lattimore on motion for rehearing, says: “We have concluded that it was material error to allow the state to place before the jury facts relative to the marriage of appellant and that he had been sued by each of his wives for divorce,” citing the Webb, Hightower and Jennings cases, supra.
It will be noted that in all of the above cases it was proven that appellant had been married several times and in all of them but one had had divorce suits. We have not found any case „ where a reversal was ordered because of proof of only one marriage, unattended by other prejudicial circumstances.
Rape cases discussing this question are as follows:
In Smith v. State, 44 Tex. Crim. Rep. 137, a reversal was ordered where it was proven over objection that appellant had a wife and two children, there being in this case no issue of the fact of intercourse. Smith v. State, 74 S. W. 556, is the same case as above.
Wilkerson v. State, 131 S. W. 1108, was a case of rape by fraud, one of the fraudulent representations by appellant toprosecutrix being that he was a single man. The court held that in view of the charge it was permissible to prove that he was a married man but error to prove that he had children.
In the case of Battles v. State, 140 S. W. 783, the court speaking through Judge Ramsey, says: “It became not only admissible, but highly important, to prove the fact that appellant was at the date and time of the intercourse a married man, as lending support to the state’s contention, and as evidence of a line of conduct out of harmony with any innocent purpose.” In this case the act of intercourse was in dispute and the female under fifteen years of age.
Judge Harper in the case of Smith v. State, 188 S. W. 984, held that,the admission of this character of testimony would not be error since it was necessary to show that he was not married to the prosecuting witness. No authorities are cited by him and his language appears to be in precise conflict with the case of Smith v. State, 44 Tex. Crim. Rep. 137.
In the recent case of McDuff v. State, 103 Tex. Crim. Rep. 668, it was held inadmissible to prove that appellant had a wife and two children, and in the Hagood case, 292 S. W. 904, it was held admissible to prove that appellant was a married man, it appearing that same was res gestae.
From the above it will be noted that such character of testimony has not uniformly been held inadmissible, nor could there be any reason for so holding as applied to all cases irrespective of the facts proven. The materiality and prejudicial character of a given fact must be measured by its relation to the entire case. Of necessity it cannot be detached and isolated from all of its surroundings and thus measured to determine its prejudicial character. So, the above testimony, as any other, must
be considered in its relation to all the evidence introduced. Thus considered, its admission, in our opinion, was not harmful.
The state’s theory and evidence was that a criminal intimacy existed between appellant and the wife of deceased and that this furnished the motive for the killing in which no self-defense existed. Two issues were thus tendered for determination: (1) That of criminal intimacy, and (2) that of homicide without justification.
Upon the first issue the inference of criminal intimacy alone is open for determination, the fact upon which it rests being admitted, namely, that appellant and the wife of deceased slept in a room alone together in a hotel in the little town of Rotan. The appellant admits this, leaving only the inference of a criminal intimacy from this admitted fact to be found by the jury. Would proof of his then having a lawful wife likely cause the jury to resolve this inference against him? Rather it would seem that proof of an existing marital obligation tend somewhat to render the existence of such intimacy less probable. Keeping in mind the important fact that appellant admits the truth of the state’s evidence of the hotel episode, we cannot believe that the conclusion to be drawn therefrom would likely be adversely influenced by proof of a marital status which did not comport with such criminal conduct.
Upon the second issue of whether an unlawful homicide occurred, it seems clear that a jury believing that the state had established the fact of criminal intimacy as a motive would not be influenced to decide such an issue adversely to appellant any quicker if he were married than if he were single. The important and controlling distinction between .this iand the rape cases cited lies in the fact that in this case it was the status of the female which made the evidence of intimacy particularly prejudicial, whereas in the rape cases it was the status of the appellant which rendered same so. In the instant case the criminal intimacy was with a married woman whose status precluded an intimate association alike as well to single as married men. Certainly in ordinary felonies, as arson, forgery and the like, it is not ordinarily prejudicial to prove that the appellant is married. Having established the fact that a man, taking advantage of the hospitality and confidence of his boyhood friend, stole the affections of his wife and despoiled her, what difference could it make whether such an act was committed by a man married or single? Proof of the association and criminal intimacy of a married man with a- young girl in a rape case might tend to inflame the jury much more than in
the case of a single man whose status does not preclude his association with her but in the case of a married woman, neither of these any more than the other has the right to her association. It might be added further that whatever harmful effect, if any, it had, was lessened because proof of the marriage status of appellant tended to disprove the state’s theory that appellant wanted to possess himself of the wife of deceased, since his marriage status precluded the consummation of such purpose by either a common law or a statutory marriage to her.
We believe that under the peculiar circumstances of this case there was no prejudicial error in the admission of this testimony.
The court charged upon the exculpatory and mitigating facts contained in the confession of appellant in accordance with a holding of this court on the previous appeal. Complaint is made of this charge for various reasons but an examination of same shows that it is, with the exception of its context, in the exact language of a charge approved in the cases of Jones v. State, 29 Tex. Crim. Rep. 21, and Pharr v. State, 7 Tex. Crim App. 472. Besides, the court affirmatively instructed on self-defense in accordance with the defensive issues raised by such confession as well also as giving the customary charge on the law of murder. This fully protected appellant’s rights. Harris v. State, 281 S. W. 206.
We have examined appellant’s remaining bills of exception and finding no error in any of them, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.