Jones v. State

40 S.W. 807, 38 Tex. Crim. 87, 1897 Tex. Crim. App. LEXIS 187

Opinions

DAVIDSON, Judge.

Appellant was convicted of murder in the second degree and given twenty years in the penitentiary; hence this appeal.

The record contains something over 300 pages of typewritten matter, a great deal of which is absolutely unnecessary to a proper understanding of the points in the case necessary to be reviewed by this court. We have repeatedly called attention to the fact that care should be taken by the lower courts in preparing a record for this court, so that the points in the case may be clearly presented, without unnecessary prolixity or confusion. To make a record in the lower court containing a great deal of useless matter is an idle consumption of time, tending to produce confusion, requiring great labor in the preparation of such a record, and is a draft upon the time of this court in reading, analyzing, and dissecting the same so as to ascertain what essential matter the record contains. And we again call attention to this practice.

After a painstaking and exhaustive perusal of the voluminous record, it occurs to us that the only questions that require a discussion and reviewed by this court, necessary to a proper disposition of this case, are as. follows: First. The action of the court in permitting a cross-examination of Mrs. Jones upon matters, as insisted upon by appellant, not drawn out from her on the examination in chief, and not pertinent to such examination. Second. The action of the court in refusing to permit the appellant to prove by the witness Kendall what defendant and his wife may have told him with reference to the alleged insults of deceased towards her. Third. The general reputation of deceased with reference to his being a man of chaste and virtuous habits and conduct towards women, or otherwise. Fourth. The admission of the testimony of S. Q. Richardson, as to seeing a woman in the office of Veal during the year 1885, and that Veal told witness that it was Mrs. Jones, etc.

In order to a proper understanding of these questions, we will summarize the case sufficiently to show their bearing. The evidence on the part of the State tended to show an unprovoked murder. The killing occurred in the city of Dallas during the fall of 1892, while the Dallas Fair was in progress. On the morning of the homicide, Veal, the deceased, and several others, were in a room in the third story of the Gaston building on Commerce Street, preparing some data or program in connection with the Confederate Reunion to take place at the Fair. Veal was busy at the time, writing. Defendant came upstairs, walked into the room, drew his pistol, placed it in close proximity to the head of deceased, and fired upon and killed him. The defense set up by appellant went merely to the degree of the homicide; that is, he claimed that he killed deceased because of the insulting words and conduct towards his wife, after their marriage, which was intensified by an alleged rape upon her by the deceased prior to their marriage; and that he killed deceased on their first meeting after being informed thereof. The defendant having been previously acquitted of murder in the first degree, the only issue presented on this trial was whether or not he was guilty of murder in the second degree or of manslaughter.

1. Appellant introduced his wife as a witness, who testified as to the alleged rape, which she testified was committed upon her in the year 1873, prior to her marriage with the defendant, which occurred in March, 1874. In that connection she stated: That she was living with a Mrs. Cockrell, in Dallas. That she occupied a room upstairs, with her infant child, by a former marriage. That Veal came and stayed all night at Mrs. Cockrell’s, he being then a minister of the gospel in the Methodist Church, and was assigned a room upstairs, in which he slept. That some time during the night she was aroused from slumber, and saw standing by her bed a man. She raised up, and told him to go away. “He kept standing there, and when I said that, he put his hand out to-mine, and put his hand over my mouth, and he saj^s, ‘Hush; thej^’ll hear you.’ I was almost paralyzed with fright, but I seemed to realize what his object was, and threw myself backward, and threw my arms around my baby, but he pulled me away and ravished me. I was not conscious at the time I was outraged. When consciousness returned to me, Veal had gone.” She further testified: That “about a year after her marriage with defendant, while she was living on Eoss Avenue, in Dallas, one day some one knocked at the door and the servant came and opened it, and Captain Veal, the deceased, came in. That Veal, instead of going into the parlor, came into the room where she was sitting. That she got up, and he came toward her, with his arms out, just like he was going to take her in his arms; and that she stepped back and said: ‘You forget yourself. Captain Veal. You forget that I have a husband to protect me now/ ” She told him to go away, and turned and left the room. “A number of years after that, while I was living in East Dallas, near the ice factory, and after I had moved in from Mesquite, my little girl came and said, ‘There is a gentleman at the door.’ I looked, and saw Captain Veal standing in the front door. I said: ‘What do you mean, Captain Veal, by coming to my house? You know I do not want to see you. It makes me miserable to see you; and I don’t want to see you.’ And he said, T was taking a walk, and thought I would stop in and see you a few minutes.’ And I told him he was not welcome, and did not want him to come near me. He only stayed a few minutes, and then left. These were the only two occasions I ever saw Veal after I was married to Dr. Jones.” She testified: That in the fall of 1891, for the first time, she mentioned Veal’s conduct towards her, both before and since her marriage with the defendant. That when she told her husband of these matters he became greatly excited, and acted like a crazy man. He wanted to go immediately to Fort Worth (where Veal then lived), but she begged him not to, and to let Veal alone. That repeatedly thereafter the subject was mentioned, the defendant bringing it up, and 'on such occasions he would act like a crazy man. This is the condensed testimony of Mrs. Jones introduced by the defendant. Over the objections of the defendant, the State proved by Mrs. Jones that she had conveyed certain property to her son, James Bullington, at the instance of Mrs. Cockrell and Mitch Gray, upon the eve of her marriage to the defendant; that this angered the defendant, and he also became angry at Mitch Gray and Mrs. Cockrell because of this matter; that the defendant forbade his wife visiting Mrs. Cockrell for nearly twenty years on account thereof; the ■squandering of the witness’ property by the defendant; the effort of the witness, Mrs. J ones, and the defendant to have the disabilities of minority of James Bullington removed, in order to have him reconvey the property to witness; and also interrogated the defendant’s wife as to advice given by the deceased to her in reference to her property, and that deceased transacted business for witness and defendant. These matters were all brought out upon what is termed a cross-examination of the witness. Mrs. Jones had testified to no facts to which these matters related or were germane; not one. When the State left the matter elicited upon examination in chief, and attempted to prove these things by Mrs. J ones, it made her its witness, and would have had the right to introduce her as a witness, and prove these facts, if appellant had never placed her upon the stand, if such facts could be proved by her, as was done in this instance. The wife can be a witness for the husband, but not against him. He is permitted to prove by her any fact that he desires. The State had the right to cross-examine her pertaining to the facts sworn to by her on direct examination. This would be a cross-examination. But when the State leaves the matter elicited in the examination in chief, and attempts to prove independent facts by her, it makes her its witness, and a witness against her husband, over his objections. This can not be done. This is no new doctrine in this State, but is settled by a number of cases. See Creamer v. State, 34 Texas, 173; Greenwood v. State, 35 Texas, 587; Hampton v. State, 45 Texas, 154; Washington v. State, 17 Texas Crim. App., 197; Johnson v. State, 28 Texas Crim. App., 17; Bluman v. State, 33 Texas Crim. Rep., 43; Hoover v. State, 35 Texas Crim. Rep., 342. The rule adopted by the courts in our State is illustrated by the right to cross-examine a witness. The cross-examination of an ordinary witness can only be conducted as to such matters as are pertinent to the matters brought out in the examination in chief; and in most jurisdictions in our country, where a party seeks on cross-examination to bring out matters not germane or pertinent to the examination in chief, if they are legitimate in evidence as competent testimony for the party seeking to bring them out on cross-examination, he will not be permitted to do so in the cross-examination of such witness, but when he comes to present his case he can introduce the witness on his own behalf. See the rule stated in 1 Greenl. on Ev., sec. 445, and authorities there cited. This practice renders patent the fact that the witness, so far as the matters which do not pertain to the examination in chief are concerned, is the witness of the party introducing them. How, in some juris dictions the party is not required to stand the witness aside until he introduces his evidence, but may prove any pertinent fact by the witness introduced by the other party; but in doing so, if he departs from the matter elicited in chief, he makes the witness his own witness. So, applying either rule, the conclusion is inevitable that when the matter elicited in chief is departed from, or when the facts sought to be established upon a cross-examination, so called, are not pertinent or germane to that elicited in chief, the witness becomes the witness of the party attempting to prove such matter. Apply that rule to this case: The facts proved by Mrs. J ones, over the objection of the defendant, as above stated, had no relation whatever, were not pertinent or germane, to any fact elicited on her examination in chief. In a case it may be important as to when the defendant married. He introduces his wife, and proves the date of the marriage. If the rule be otherwise than that stated by us, the State would be permitted to prove by the wife all manner and every description of criminative facts against the husband. We are of opinion that the State had a right to prove by Mrs. Jones, because it was pertinent to her examination in chief, that she visited the deceased after the commission of the alleged rape and the other insulting conduct. Any fact or circumstance which tended to show a friendly relation between Veal and Mrs. J ones after the insulting conduct above mentioned occurred is admissible, because pertinent to her examination in chief; but nothing else, according to this record, was permissible to be shown by the State on cross-examination. Now, while the court might have violated this rule in permitting the State to prove facts not germane to the examination in chief, yet, unless the facts are of such a character as to have a material bearing upon the issues involved, we would not reverse this judgment upon this ground. The question, therefore, is the materiality of these facts; their bearing, etc., when viewed with reference to the theories of both parties. The record develops the fact that the theory of the State was that Jones killed the deceased because he was trying to protect Mrs. Jones, and especially her son, James Bullington, from the avarice of Jones, the defendant; that Veal was the protector of Mrs. Jones and her son, and that he was a serious obstacle in the way of Jones in his (Jones’) desire to obtain the possession and control of the property which belonged to Bullington, having been transferred to him just before the marriage of the mother with the defendant; his object was to get a deed from young Bullington to his wife for the property and real estate, and finally to have the control and management, and perhaps the absolute fee to the property, in himself, and that the deceased was an obstacle in the way of.defendant to perfect his plans. The theory of the defendant Avas that, owing to the insults, outrages, and conduct of Veal towards his wife, he killed him, and that he Avas, therefore, guilty of nothing greater than manslaughter. ■ These were the opposing theories. The battle was fought upon these lines; the State marshaling all the facts and circumstances in support of its theory, and the defendant all that supported his theory. Now, the State is permitted, over the objec tions of the defendant, to lay the very foundation upon which this theory rests by the testimony of Mrs. Jones, which was not germane to anything elicited by the defendant. We think the testimony was very important when we look to the issues between the parties, and, not being pertinent or germane to her examination in chief, but being original testimony, she being the wife of the appellant, its admission, over the objection of appellant, was improper.

2. On the trial of the case, appellant introduced one T. Gr. T. Kendall, and proposed to prove by him that immediately after the communication made by the wife of appellant to him in the fall of 1891 (about a year prior to the homicide) in regard to Yeal’s conduct toward her, that defendant, being in great distress of mind, sought his friend, said Kendall, to advise with him relative to the communication so made by his wife; that defendant was then in an excited and distressed condition of mind, and then and there told Kendall of said communication so made to him by his wife, to wit, that Yeal had raped her in 1872, prior to her marriage with defendant, and after her marriage with defendant, in 1874 or 1875, and again in 1885, Yeal had visited her with lecherous and carnal propositions, and that in said first visit Yeal had sought to embrace his (defendant’s) wife; defendant stating then and there to said Kendall that his (defendant’s) wife had communicated such facts to him a few days prior thereto. Defendant further offered to prove that he., expressed to Kendall his unqualified belief in the truth of the statement so made to him by his wife; that said Kendall then stated to defendant that he did not believe it, that he had known defendant’s wife since she was a child, and that he would not believe that Yeal or any other man had raped or insulted her, unless he heard it from her own lips; and said Kendall refused to talk with defendant, and left him. He also offered to prove by Kendall that shortly thereafter he saw Mrs. Jones (wife of appellant), and that she told him of the circumstance of Yeal having raped her before her marriage with appellant, and of his subsequent visits to her as stated above. A few hours after this, Kendall again met defendant, and told him: “I have been to your house. I have seen and talked with your wife, and she has told me that what you stated to me in regard to Yeal’s conduct toward her was true.” And said witness, in that connection, stated to appellant: “Every word your wife has stated to me and to you is true. Yeal did everything she says he did. I know your wife to be incapable of telling a lie. A purer, better woman never lived, and I believe every word she says about it.” Appellant also offered to prove by Kendall that repeatedly after said communications appellant talked with him about said matters up to within a few days of the homicide, and on all such occasions he was greatly excited, and appeared to be in a distressed condition of mind, and on such occasions was never calm, and always avowed his belief in the truth of said communications made to him by his wife. Appellant also proposed to prove by his wife that she made the statement to Kendall as above stated; and it was also proposed to prove by her that she told Mrs. Cockrell these same matters. All of this testimony was objected to by the State, and excluded by the court, to which defendant excepted. Appellant insists that said testimony wa,s admissible as tending to show that his defense set up in this case was not fabricated, and as tending to rebut the contention of the State that said matters were manufactured after the homicide. He also urges that said testimony was admissible as tending to establish both the truth of the facts communicated to defendant by his wife, and the defendant’s belief in the truth of said communication; and also showed a communication to defendant by Kendall of the same facts communicated to the • defendant by his wife, and that defendant’s wife, long anterior to the homicide, had communicated said rape and subsequent insults by Veal to another than the defendant.

The statement of acts presents but one issue, and that is, whether appellant was guilty of murder in killing W. G. Veal, or whether he was guilty of manslaughter. If the jury believed the testimony of Mrs. Jones and appellant, the theory of appellant that it was nothing greater than manslaughter is clearly presented. If the jury did not believe the testimony of appellant and Mrs. Jones, then manslaughter, so far as the jury is concerned, is not in the ease. The State’s theory is that the killing was not prompted by a passion aroused by this misconduct of Veal towards Mrs. Jones (wife of appellant), and that her testimony was manufactured to aid her husband in his defense. Every particle of testimony introduced by the State is for the purpose of making a case in opposition to the tiuth of the testimony of Mrs. Jones and defendant. How, the rule of law is that, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, the party introducing the witness can prove that before the motive existed (the motive in this ease being to save the life or liberty of her husband), the witness made the same statement as that sworn to. To state the proposition in another form: if the opposing case is to the effect that the witness had a corrupt motive in swearing to certain facts, or that the witness recently fabricated the testimony for a purpose (in this case the motive being to prevent the conviction of appellant, and that, therefore, this testimony was manufactured after the death of Veal), the party introducing the witness (being the appellant in this case) can show that before the deceased (Veal) was killed the witness (Mrs. Jones) told the same story which she swears to upon the trial. By such proof, the charge that it was fabricated, or prompted by an improper motive, is completely met and destroyed, if believed by the jury. The authorities are divided as to whether a witness can be supported because the adversary has shown that he made conflicting statements about the fact. We hold that this can be done. This, however, is a doubtful question when tested by the authorities. All the authorities agree, where the attack is made that the witness is prompted by improper motives, or has recently fabricated the story, that under either of these contingencies the party introducing his witness can prove his witness stated the same facts prior to the time when the motive could have existed, or prior to the occasion or circumstance prompting the manufacturing of the testimony. We have repeatedly written upon this subject, laying down substantially the same rules that we here state, and we deem it unnecessary to even cite the cases. In support of this last proposition we cite 1 Whart. on Ev., 2 ed., art. 570. We also call attention to the long list of eases cited by Mr. Wharton in note 2 to this article. Apply these principles to this case: When- the testimony in the case had been concluded there was no evidence before the jury that Mrs. -Jones or appellant had ever alluded to the outrages committed upon Mrs. Jones. The inference was cogent, indeed, that it was fabricated to' save the life or liberty of the appellant. When the testimony of Mrs. Jones is scrutinized, it is placed in a very doubtful attitude. It would have been perfectly natural and reasonable for the jury to have inferred that she had manufactured her testimony because she wanted to save her husband. But suppose, in addition to her testimony (it being of a doubtful character standing alone), the evidence of ICendall had been received, would any man have entertained the same doubts about its truth as if her testimony had been without support? Law should he common sense, and there is no man but what would have much more readily believed her testimony if they had known that she told the same story before the death of Yeal as that which she swears to on the trial. We are of opinion that this testimony was admissible for the purpose of supporting Mrs. Jones, and for the purpose of showing that Jones believed her statements. Again, in another view, this testimony was admissible as independent evidence, for the purpose of showing that the insulting conduct of Yeal towards Mrs. Jones had been communicated to Jones prior to the homicide. It is true that Mrs. Jones swore directly that she communicated the insulting conduct of Yeal to her husband, hut the defendant was not circumscribed by making such proof by his wife. As original testimony, it was entirely competent for the defendant to have introduced Kendall 'to show that Mrs. Jones communicated the conduct of Yeal to him, and that he in turn told it to the defendant prior to the homicide.

3. The next question presented is whether or not appellant had the right to prove the general reputation of deceased with reference to his being a man of chaste and virtuous habits and conduct towards women or otherwise. Appellant attempted to do this by a number of witnesses, and on objection by the State it was excluded by the court. We are of opinion that specific acts of lewdness (which appellant also claims were excluded) were not admissible. The general principle applicable to such specific acts is that R would involve too many issues, and the court can not turn aside to try a vast number of collateral matters. But the rule is different as to general reputation. We are of opinion that proof of deceased's general reputation being bad in this particular was not admissible for the purpose of showing that he was guilty of the insulting conduct towards Mrs. Jones, but we are of the opinion that his general reputation was admissible for the purpose of determining whether Jones believed the story told him by his wife. We have no doubt of the correctness of this proposition. In addition to 'this, appellant had a right to prove that his general reputation was bad, and that, he was informed of such reputation. This evidence is admissible, as before stated, to show •that he not only believed what his wife had told him, but added greater probability to the presumption that he acted on this belief.

4. The next question presented is as to the action of the court in admitting the testimony of S. Q. Richardson as to seeing a woman in the office of Veal during the year 1885, and that Veal told witness that it was Mrs. Jones., The object of this testimony on the part of the State was doubtless for the purpose of showing the friendly relation existing between Mrs. Jones and Veal, and so to discredit her story with reference to Veal’s insults towards her. Now, if this testimony had identified the Mrs. Jones seen in Veal’s office by Richardson as the wife of appellant, or if it had a tendency to so identify her, it would have been admissible. But, in our opinion, there was no circumstance connected with this matter that sufficiently identifies her as being the wife of appellant, and so the testimony should have been excluded. Again, what Veal said about it was clearly hearsay evidence, in the absence of any testimony tending to identify Mrs. Jones there mentioned as the wife of the appellant. This testimony, as presented, is purely hearsay. If, in fact, Mrs. Jones visited Veal, as attempted to be shown by Richardson, this would have been a very strong circumstance with the jury, tending to negative or disprove everything that she had said about the insulting conduct of the deceased. The conclusion would have been very strong, indeed, that she had manufactured this story for the purpose of saving the life and liberty of her husband. Now, the rule is that no conclusion can rise higher than the facts from which it is made. When a conclusion is sought to be made, the fact upon which it is based must be clearly proved. Vague suspicions, leading to hurtful conclusions,' are not permitted in law. See Burrill on Gire. Ev., p. 126. This is the second appeal of this case, appellant having previously been convicted of murder in the first degree, but the case was reversed, because it was not properly tried. 33 Texas Crim. Rep., 492. The questions discussed in this opinion are upon the admission and exclusion of evidence, which, in our opinion, go to the merits of the case. The errors are not mere irregularities, but are in regard to the admission and exclusion of evidence upon vital questions, and it is impossible for us to tell what influence the excluded testimony might have had upon the jury, or what influence the admitted 'testimony may have wrought upon their minds: The rules with regard to said testimony, it occurs to us, are obvious. They are found in the text-books on evidence, and have been followed by this court in a number of decisions. We can not afford to set a bad precedent by their violations, nor are we inclined to do so. In the discharge of our duty, the rules of evidence must he observed in all cases. This is for the common benefit of all, in order that all may alike be protected by the rules of law. Because, in our opinion, these rules were not adhered to and enforced in the court below, the judgment is reversed, and the cause remanded.

Reversed and remanded.

After the above opinion was handed down, the following motion for rehearing and brief in behalf of the State was filed by Hon. Mann Trice, Assistant Attorney-General:

How comes the State by attorney, and moves the court to set aside its judgment of reversal rendered herein on May 19, 1897, and grant a rehearing for the reasons following, to wit:

1. Because the court erred in holding that the trial court should not have permitted the line of cross-examination of the wife of appellant as disclosed by bill of exceptions number 3, in this: The matters inquired about by the State on cross-examination of the wife of Jones were germane to the matters elicited from said witness on her examination in chief. Mrs. Jones having testified to exculpatory facts on the examination in chief, to wit: That Jones had been a warm friend of Veal up to the time she communicated to him the story of the remarkable rape, and endeavored by every means possible to demonstrate to the jury that the killing was the result of the alleged insults to her and was due 'to no other caiise. The theory of the State was that Jones had been at enmity with Veal for many years antedating the time she claims to have related to him the outrages of Veal upon her, and that this enmity was due to the supposed interference of Veal in preventing James Bullington from reeonveying the property Mrs. Jones had conveyed to Bullington the evening prior to her marriage with Jones. It was therefore permissible for the State on cross-examination to ask Mrs. Jones any question tending to contradict her testimony in reference to when Jones became enraged at Veal and as to the cause of his anger. Especially would this be permissible for the purpose of laying the predicate to impeach Mrs. Jones, by showing that the killing was not the result of the alleged rape, but due to other causes. I concede that the general rule is as stated by the court, that the cross-examination of the wife should be confined to the matters drawn out on the examination in chief, or be germane thereto, but there are well established exceptions to this general rule, which is universal and binding; that is, the right of cross-examination extends to all matters connécted with the res gestae and as to credit. Whart. on Ev., sec. 529; Wallace v. Wallace, 63 Iowa, 651; Wroe v. State, 20 Ohio St., 460; Mask v. State, 32 Miss., 405; State v. Sayers, 58 Mo., 585.

Again, it is well settled that as a general rule a witness can not be cross-examined as to collateral matters. It is equally well settled, that if the testimony goes to show the bias of the witness or falsity of the main story, it is permissible to cross-examine as to collateral issues, and issues not touched upon in the examination in chief. Whart. on Ev., sec. 532; U. S. v. Hudland, 5 Cranch C. C., 309; Com. v. Shaw, 4 Cush., 593.

Mrs. Jones studiously avoided answering in the affirmative any questions tending to show that Jones was angry with Veal, because of her conveyance of her property to her son and her son’s refusal to reconvey to her. On the contrary there was a labored effort upon her part to show that no enmity was engendered by reason of these things. To hold that she could not be asked questions for the purpose of laying a predicate to impeach her on this line, would be tantamount to a denial of the right of cross-examination, which I apprehend would not be tolerated.

The cases of Creamer v. State, 34 Texas, 173, and Greenwood v. State, 35 Texas, 587, cited by the court to sustain its position in this regard, are decisions of the old “Semi-Colon Court,” and are very rarely ever relied upon as authority in this State. And in so far as said cases hold that the cross-examination should be confined to the matters drawn out of the examination in chief, same is at variance with the opinions of the Supreme Court of to-day and of the former opinions of this court. Rhine v. Blake & Jenkins, 59 Texas, 240; Morris v. State, 30 Texas Crim. App., 116; Brookin v. State, 26 Texas Crim. App., 121; Johnson v. State, 27 Texas Crim. App., 163; Miller v. State, 28 Texas Crim. App., 445; Id., 448.

2. This court erred in holding that the trial court should have permitted Mrs. Jones to be corroborated by her unsworn statements made to Kendall, in reference to the alleged rape, for this: The State did not seek to impeach her by showing contradictory and different statements made by her. The fact that the State did not admit the truth of her story can not be termed an impeachment. It is never admissible to sustain a witness by proof of general good character or otherwise, until the reputation of the witness is assailed for truth and veracity or impeached by showing contradictory statements. These are conditions precedent to offering testimony to corroborate or sustain a witness. “Assaults upon the veracity of a witness, made only by counsel in argument, do not constitute such an impeachment of the credibility of the witness as will authorize the admission of testimony to sustain his reputation for truth and veracity.” Ricks v. State, 19 Texas Crim. App., 308. See Railway v. Raney, 86 Texas, 363.

The court cites article 570, eighth edition of Wharton’s Evidence, in support of its theory that Mrs. Jones should have been corroborated by her unsworn statements. If the court will examine the ninth edition of Mr. Wharton’s Evidence, under article 570, on this subject, the following will be found: “We find the decided weight of the authority to be that proof of declaration made by a witness out of court, in corroboration of testimony given by him on the trial of the cause, is as a general rule inadmissible, even after the witness has been impeached or discredited; and we are satisfied with the correctness of the rule.” The following authorities are cited: 2 Phillips on Ev., 5 ed., 973; 1 Starkie on Ev., 147; 1 Greenl. on Ev., 469; Robb v. Hackley, 23 Wend., 50; Gibbs v. Linsley, 13 Vern., 208; Ellicott v. Pearl, 10 Pet., 412; Conrad v. Griffith, 11 How., 480.

To say that a witness can be corroborated and probative force given to testimony by introducing the unsworn statements of the witness,' it seems 'to me is a dangerous proposition. If A charges B with the commission of an offense, and B pleads not guilty; A takes the stand and swears to a state of facts that if true would make out the offense, and B denies the' charges, it seems strange 'to say that it would be permissible to corroborate A by showing that he had made the same statement to divers other persons before the proceedings were instituted. Now, if the other persons were called in, they could only testify that A had made the same statements to them that he had testified to under oath. They could not testify to the truth of the story, nor should it be permitted to bolster up a witness in this way. If this were true, “a witness’s credibility would depend more upon the number of times he had repeated the same story than upon the truth of the story itself.” Bailey v. State, 9 Texas Crim. App., 99, 100; Whart. on Ev., 511.

Again, “that the same statements were made at another and different times, furnished no evidence of its truth, and unsworn statements of doubtful credibility should not be permitted to corroborate the sworn statements, especially if -the witness has not been impeached by showing contradictory statements, or that her reputation was bad.” Sidelinger v. Bucklin, 64 Me., 371.

The rule as stated by Mr. Jones is as follows: “The rule has sometimes been declared, that after an attempt has been made to impeach a witness by showing his contradictory statements, proof may be received that he had affirmed the same thing before on another occasion, and that he is still consistent with himself. But it is clear that this view is contrary to the great weight of authority. A representation without oath can scarcely be considered as any confirmation of a statement upon oath.” Jones on Ev., sec. 872. See also State v. Archer, 73 Iowa, 320; Tussell v. State, 93 Ga., 450; State v. Thomas, 3 Strob., 269; Connor v. People, 18 Col., 373; Munson v. Hastings, 12 Vt., 346; 36 Am. Dec., 345; Bailey v. State, 9 Texas Crim. App., 100.

It is but natural that the State should have disputed the truth of the story of an alleged rape, made in a house with a number of other occupants, and where no force, threats, or fraud were resorted to, and where-no outcry or disturbance was made for more than twenty years, and when the rape was accomplished in such an easy and noiseless manner as not even to awaken the baby sleeping in the same bed. This is not a story calculated to he believed by every person. In fact, rapes of this character should not, in my judgment, receive judicial encouragement. Because forsooth a citizen would be so incredulous as not to believe this story, this could not be termed such an impeachment of the witness as. to permit unsworn statements to sustain her.

3. The court erred in holding that it was permissible to prove the general reputation of deceased as being a man of chaste and virtuous-habits. His reputation in this regard could not avail defendant on this, trial for murder.

B. B. Seay, J. G. Muse, S. H. Bussell, and Miller & Williams, in opposition to the motion.

This ease was reversed upon this appeal by this honorable court, upon the consideration of the four following issues, presented in the record, viz.:

“1. The action of the court in permitting a cross-examination of Mrs. Jones upon matters, as insisted upon by appellant, not drawn out from her on the examination in chief, and not pertinent to such examination.

“2. The action of the court in refusing to permit the appellant to prove by the witness Kendall what defendant and his wife may have told him with reference to the alleged insults of the deceased toward her.

“3. The general reputation of the deceased, with reference to his being a man of chaste and virtuous habits and conduct towards women or otherwise.

“The admission of the testimony of S. Q. Richardson, to seeing a woman in the office of Veal during the year 1885, and that Veal told Richardson that it was Mrs. Jones,” etc.

The decision of the court upon the questions of evidence is in conformity with the statutes of the State precluding 'the husband or wife from being used as a witness against each other, and with the uniform trend of decisions in this State.

This answer is deemed unnecessary, but it is deemed proper to challenge the unique and startling propositions seriously asserted for the State in the motion for rehearing, assailing the opinion of the court upon the four issues above stated.

1. The Assistant Attorney-General concedes, “that the general rule is as stated by the court, that the cross-examination of the wife should be confined to matters drawn out on the examination in chief,” but insists that “the right of cross-examination extends to all matters connected with the res gestae, and as to credit.” It is likewise tacitly conceded that the so-called cross-examination of Mrs. Jones, by the State, was not confined to, but went beyond the matters drawn out upon her direct examination; which was confined to and elicited only ‘the fact of Veal’s assaults and insults prior and subsequent to her marriage with the defendant, her communication thereof to him in the fall of 1891, and the effect of such communication upon him. And it will be seen that her testimony by the defendant was confined within the statutory limitations of manslaughter. The defendant having introduced his wife as a witness in his behalf, could safely rely on 'the statute; that as a witness her testimony for or against him could go no further than elicited by him, and that her cross-examination should he confined to the matters drawn out by him. Right or wrong, it is the law. What was drawn out on the so-called cross-examination of the wife? The fact of her conveyance of property to her son James Bullington, at the instance of Mrs. Cockrell and Mitch Gray, just prior to her marriage with defendant; his enmity for nearly twenty years towards such parties, Gray and Cockrell, therefor; the dissipation of the wife’s property by the husband sought to be shown; that the husband managed it and that it was all gone, proven. The effort to have the disability of J ames Bullington removed, and have him reconvey the property to his mother; and the fact that the deceased had transacted business for the defendant and his wife; and other matters of similar import were elicited from the wife by the State, over objection of the defendant. Now, by what legerdemain of specious logic can this testimony be held germane to the facts of insult to the wife, communication thereof to the husband, and his excitement and passion thereat?

4. In view of the facts in this case, it was not reversible error to permit S. Q. Richardson to testify that he saw a woman in Veal’s office, and that Veal stated it was Mrs. J ones. She was identified by other witnesses as being the identical Mrs. J ones who testified in this case, and as having been seen in Veal’s office and in company with Veal at other places, and she did not exhibit any signs of disagreeable emotions of the mind when seen in his presence, as indicated in her testimony.

The position of the Staite is that no outrage or insult to the wife occurred, hence no communication thereof or passion thereat could exist, and that the statement of the wife upon direct examination was untrue. Now, this is the theory of the State, and it contends 'that the defendant killed the deceased on account of a property motive, viz., that Veal was advising against and preventing the reconveyance of the property by James Bullington, which had been conveyed to him by his mother prior to her marriage with the defendant. The State had the right to prove the facts that would show its theory to be true, if it was true, but not by the wife. If it had been a case of deliberate murder, and if the defendant had not introduced his wife as a witness, the State could not. The husband having introduced her, what are the limitations as imposed by law as to her examination as a witness? The court has correctly stated them, following an unbroken line of decisions in this State, and the plain mandate of the statute. Even the Assistant Attorney-General concedes this, but claims that the case is an exception to the general rule. Upon what ground? Surely not upon the assumption that the facts elicited by the State upon cross-examination of the wife were germane to her direct examination. The facts elicited by the State were independent, and wholly disconnected from the facts drawn out by the defendant from his wife. Cross-examination is the examination of a witness upon the matters already elicited. To go beyond this is to make the witness your own.

The Assistant Attorney-General insists that the exception to the rule, which would permit the cross-examination of the wife to be enlarged beyond the matters drawn on direct examination, “extends to all matters connected with the res gestae and as to credit.”

The statute has made the rule followed by the court, and to adopt the views presented for the State would be to overrule the statute, and embark upon a sea of judicial legislation, with a shifting, uncertain compass, furnished by the words in the rule invoked by the State, viz., cross-examination, res gestae, credit. But taking this compass for guidance in this ease, where would we land under logical construction? First, we must know to start with, what is cross-examination. It is what the words imply, an examination or inquiry into the facts already stated hy the witness; when it goes beyond this it ceases to be a cross-examination, and becomes a direct examination; and it has been decided by this court that the witness then becomes the witness of the party conducting such direct examination. Tested by this rule, the facts elicited by the State from the wife was not cross-examination, and the State occupies the position of introducing the wife as a witness against her husband.

Again, what res gestae fact has the State been precluded from proving by the wife, under the contention that the cross-examination of the wife could include "res gestae?” What is res gestae? The thing done, the facts immediately connected with the thing done. What is the thing done in this case? The indictment says murder. The wife was not present at the killing. She was not interrogated about it. The facts elicited from her form no part of the res gestae. But perhaps it was the idea of the State to "stretch” the terms res gestae to include everything connected with the facts of the outrage and insults to the wife, communications to the husband, and passion thereat. If so, the cross-examination of the State upon this matter was without objection and no error is assigned thereon. But in what way the facts drawn out by the State upon its alleged cross-examination could form part of the res gestae of the outrage and insults to wife, is undiscoverable. Res gestae is an elastic legal term, and has its legitimate bearing in a proper connection, but it can not be stretched so as to obliterate a plain statute. The right of the wife to testify at all is limited by law, and her cross-examination can not be extended upon the issue as to the credit of her statements, beyond matters pertinent to the testimony adduced on her direct examination. This the court has recognized, and pushed the doctrine to its fullest extent in behalf of the State, in holding that the State might interrogate the wife as to visiting Veal as a matter pertinent to the facts stated by her in direct examination. The court in its opinion correctly states it is no new doctrine in this State that the cross-examination of the wife must be germane and pertinent to the facts drawn out on the direct examination, and cites a number of authorities sustaining that position, among the number the Creamer and Greenwood eases. Counsel for the State in the motion for rehearing refers disparagingly to these two eases as rendered by the "Semi-Colon Court,” and that the same are rarely relied upon as authority, and indulges in the criticism that the opinion in this case upon this point as at variance with the opinions of the Supreme Court and the former opinions of this court, and cites Rhine v. Blake & Jenkins, 59 Texas, 240, a civil case, and four criminal cases. Counsel ignores or overlooked the distinction between a civil and a criminal case. In a civil ease, confidential communications between a husband and wife are protected. In a criminal case, neither shall be a witness against the other, and when introduced as a witness by one for the other the cross-examination is limited, as decided in this case. Such is and has been the settled law of this State and was followed by the "Semi-Colon Court,” also uniformly by this court. And the authorities cited by the State do not support the contention made. The theory of the State was that the motive for the killing was a property motive. The record discloses that more than a year before the killing James Bullington had become of age, and reconveyed to his mother the property which she had deeded to him, before her marriage with the defendant, when he was an infant. And this fact was in answer to the theory of the State as to the existence of a property motive, and emphasizes the injury to the defendant in the admission of the illegal testimony elicited from his wife.

2. The court holds that the rejection of Kendall’s testimony relating to the communication by Mrs. Jones to him of the same facts communicated to the defendant, and Kendall’s subsequent communications of the same to the defendant, prior to the homicide, was error, upon two grounds: (1) that the same was competent as original evidence upon the issues of the fact of the communication being made to the defendant, and his belief in the truth of the story; (2) that it was competent as tending to rebut the theory of the State that the story was fabricated by the defendant after the homicide, by the defendant and his wife. The Assistant Attorney-General attacks only the latter proposition; his silence upon the former proposition may be legitimately construed into acquiescence as to its correctness. To dispute it would argue great unfamiliarity with the rudiments of elementary law and challenge the derision of common s'ense. I say again, the silence of the State upon this proposition is significant. It is a concession as to the correctness of the opinion reversing this case. Let me illustrate: The State in a murder case proves by one witness facts which, if believed, would constitute coldblooded, deliberate murder, and justify and merit the infliction of the death penalty as a punishment to the defendant. The State then offers to prove by other witnesses the same facts to strengthen its case; the defendant objects to further testimony, because but one witness can prove the same facts. Would an intelligent court give the proposition serious consideration? The proposition would excite ridicule in the common sense of the country. Again, a defendant in a murder case, relying upon self-defense, offers to prove by more than one witness the acts done in self-defense, and that his life had been threatened by the deceased. The State objects, and insists that the proof of the same fact shall be limited to one witness. Such a rule would be scouted by the business sense of the country, where only dollars and cents are involved, upon contract or otherwise. Is the rule to be more liberal where dollars and cents are involved than where life and liberty is at stake? Now, applying the illustrations to this case, the defendant proves by his wife the communications to him of her story of outrage and assault and insult, and offers to prove by Kendall that the wife also told him, and that he made the same communication to defendant, before the homicide. No rule of law would reject this testimony. Why? Because communication and belief are the pivotal facts in the defense, and their proof can not be restricted to the testimony of one witness. As well say that if A inform B that assault and outrage has befallen his wife, and B is likewise so informed by his wife, that the testimony of the wife will be rejected because A first communicated it to B, and a fact can be proven only by one witness. So much I have said on the proposition to demonstrate the weakness of the motion, and that from the State’s standpoint the decision is correct.

But the Assistant Attorney-General attacks the second proposition, and says that the court erroneously held that Kendall’s testimony was not admissible to support the testimony of Mrs. Jones, who was sought to be impeached by the State. He illustrates by saying that suppose A swears to facts that constitute B guilty. B denies and proves that he made the same denial before prosecution. Then says that it is ridiculous that he could corroborate himself by such statements. We say so, too. The court in this case decided no such nonsense. And we doubt if it was ever so held by any appellate court. In the first place, an affirmation on the one side and a denial on the other is not an impeachment. It has been repeatedly so held by this court. In the second place, the statements of a defendant made after the commission of an offense, even though made before prosecution, are held to be self-serving and inadmissible in his behalf. But how is the rule when the statement of the witness was made before the commission of the offense, before any motive for fabrication could exist. The weight of reason and authority support tfie court in the decision that such statements may be introduced to support the witness when attacked or impeached. The Supreme Court of of the State so held in the Marek civil case cited in appellant’s brief. And the decision of this court on that point is in accord with its previous decisions. Again, applying the illustration made in this case by us. The State limits the evidence of the defendant to the testimony of himself and wife, upon the issue of the insults, etc., to the wife, and their communication to the husband and defendant. The State then, after so circumscribing the defendant’s evidence, charges them with fabricating the story, after the killing, to escape a murder conviction. And after so attacking them, declines to permit proof 'by Kendall that the wife told him, and that he communicated it to the defendant, more than a year prior to the killing. Common justice and fairness could not exclude this testimony.

Again, the second proposition is absorbed in the first. If Kendall’s testimonjr was admissible as original evidence to show communication, etc., the testimony as original evidence would have been admissible for all purposes, and it does and would have supported Mrs. Jones, upon the theory that it was not fabricated after the killing, and that the communication was made to the defendant before the homicide. The position of the Assistant Attorney-General .goes to the weight of .the testimony, and not its admissibility. He says that the story is not calculated to be believed. Suppose not; that is not a question which concerns him or this court; the issue now is as to its admissibility; its weight and credence is for the jury. Tested by this rule, the statements of the defendant and Ms wife should have been rejected, according to the argument, because not calculated to be believed. But the Assistant Attorney-General puts, himself in this anomalous position; he concedes Kendall’s testimony admissible as original testimony, by his silence as to that proposition, but. says that it was not admissible to support Mrs. Jones, when in fact if admissible as original evidence it was admissible for all purposes, including support of Mrs. Jones. Then he reaches the climax of illogical inconsistency by assuming that the story of the defendant and his wife is. incredible and was fabricated after the homicide, and gravely says that Kendall’s testimony should not be received, which would disprove the-charge of fabrication. But he leaves the proposition with the suggestion, that rapes of this character should not receive judicial encouragement. Counsel has evidently overlooked the habeas corpus opinion in this case. He possibly forgot for the moment, when he penned the sentence, with such unkind inference, that tMs court is not a nisi prius. court, but only an appellate court, whose legal and constitutional duty it was to point out and correct the errors of law committed upon the trial..

3. The third proposition in the motion avers that the court erroneously holds that the reputation of Veal was competent evidence, and affirms that such reputation could not avail defendant on this trial for murder. The motion contents itself with this brief ipse dixit.

The statute provides that homicide is divided into murder of the first and second degree and manslaughter. It avails a defendant much as to. which he is convicted of. The statute provides and the decisions hold, in self-defense to homicide, that the belief of the defendant as to the peril under which he acted is the pivotal issue in self-defense. Evidence, as to threats by the deceased, habit of carrying arms, reputation as a dangerous man, etc., is admissible evidence. What for, unless it be to> shed light on the belief .under which defendant acted? How, in manslaughter predicated on insults, etc., to wife or female relatives, belief in the truth of the communications as to the insults, etc., is the pivotal issue in reducing murder to manslaughter. Then what? The conclusion follows, as does night the day, that belief in manslaughter is the eorrollary of belief in self-defense. As is said by the court, the reputation of Veal was not competent to show that he was guilty of the insulting-conduct charged, but it was admissible as tending to shed light as to the-defendant’s belief in the truth of the communications made as to such insulting conduct.

é. The Assistant Attorney-General urges that the court erred in holding that S. Q. Richardson’s testimony was inadmissible, to the effect that he saw a woman in Veal’s office, and that Veal told him -that it was Mrs. Jones. Then follows the statement in the motion, she was identified by other witnesses as being the identical Mrs. Jones who testified in this, case. If this was true there would be merit in the proposition. But what is the fact? The record discloses that no witness identified or.attempted to identify the woman, who Richardson says Veal told him was Mrs. Jones, as being the wife of the defendant. On the contrary, the- record shows that there were then in Dallas several Mrs. Dr. Jones. Richardson’s testimony was hearsay, and there is nothing to show that the woman in question was the defendant’s wife. The name is not so rare in Texas as to suggest any particular individual.

5. The appellant submits the case and asks that the motion for rehearing be denied.