Wiley v. State

26 S.W. 723, 33 Tex. Crim. 406, 1894 Tex. Crim. App. LEXIS 129

• Court: Court of Criminal Appeals of Texas
• Decided: May 26, 1894
• Docket: No. 289.
• Status: Published

Opinion

BLUET, Peesidtng Judge.

— Conviction of adultery, for living with, and having carnal knowledge of, Sarah Tary. The evidence that Sarah Tary was a married woman at the time of the illicit intercourse between her and appellant is mostly, if not solely, that of the paramour, Sarah Tary. She is an accomplice, and must be corroborated by some evidence, from some legal source other than herself. Is there in this record such corroboration? Before this prosecution (how long not stated), Sarah stated, in the presence of Emeline Johnson and the appellant, that she was married, and that her husband was living in East Texas. To this evidence appellant objected, because hearsay, etc. The objection was well taken. The fact that the statement was made in the presence of appellant does not make it competent; it was still hearsay. He was not called upon to deny the fact, he not then being charged with this offense, and a failure to do so did not prove that Sarah was married to a man who lived in East Texas. If the marriage had been established, and it was necessary to prove that appellant had knowledge of the fact before or at the time of the cohabitation, Sarah’s statement in his presence would have been competent evidence. But such proof is not required. That Sarah had stated before the trial that she was married is no corroboration whatever. Such evidence, under certain circumstances, may be received to sustain the credit of a witness. See Conway v. The State, ante, p. 327, for such circumstances.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.