
    JOHNSON v. STATE.
    (No. 7556.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1923.)
    1. Witnesses <9=o75 — Objection by husband to testimony by wife against him unnecessary under statute.
    Code Cr. Proc. 1911, art. 795, forbids the state to call and use the wife of accused as a witness against him. and, as a state’s witness, the wife is disqualified and cannot be properly called, whether defendant objects or not.
    2. Witnesses <&wkey;188(1) — Husband may refuse to testify as to his confidential communications to his wife.
    Code Cr. Proc. 1911, art. 794, as to communications between husband and wife, confers upon the husband the privilege of refusing to testify to confidential communications by him to his wife, and of having excluded letters written by him. to her.
    3. Witnesses &wkey;?219(5) — Acquiescence of husband in admission in evidence of letters written wife held waiver of privilege to exclude.
    In a prosecution for bigamy, acquiescence of defendant husband, in the admission in evidence of letters written by him to his wife, held to constitute a waiver of his privilege to exclude them under Code Cr. Proc. 1911, art. 794.
    4. Witnesses &wkey;U95 — Letter written to divorced wife seeking reconciliation, held not “privileged communication.”
    In a prosecution for bigamy, a letter written by defendant to his first wife, after divorce, seeking a reconciliation, held not a privileged communication under Code Cr. Proc. 1911, art. 794.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Priv-illeged Communication.]
    5. Witnesses <&wkey;2!9(2) — Defendant’s voluntary introduction in evidence of wife’s testimony held not ground for reversal.
    In a prosecution for bigamy, the fact that defendant offered in evidence the record of testimony of his first wife taken at a previous examining trial, which testimony was unfavorable to defendant, held not to warrant reversal of defendant’s conviction, in view of Code Cr. Proc. 1911, art. 795, expressly authorizing a husband to call a wife as witness.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Robert M. Johnson was convicted of bigamy, and he appeals.
    Affirmed.
    Harry C. Gerlach, of Houston, for appellant.
    E. T. Branch, of Houston, and R. G. Sto-rey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is bigamy; punishment fixed at confinement in the penitentiary for a period of five years.

Appellant and Gladys Gifford were married in July, 1920, and divorced on November 14, 1921. In June, 1922, appellant was married to Ester Benair. This appears from appellant’s testimony given as á witness in his own behalf. After the divorce, Gladys Johnson remained at the home of her mother until January, 1922. On December 9, 1921, appellant wrote her a letter, which was read in evidence, which began: “Dear Wife and Baby.” In it he acknowledged the receipt of a “sweet letter” from her, and said that he was willing to do what was right, and that he wanted her to come back to him as he could-not stay away from her and the baby. He then used this expression:

“Now, if you think I don’t intend to marry you, I will go and get a license and send them to you and when you come, you can bring them back and we will get married again for never to part.”

He said further:

“And if you care for me like you say you- do, you will come as quick as possible.”

A few days after this letter was written, appellant went to the home of the mother of Gladys Johnson and took her to Houston, where he rented an apartment in which he, she, and the baby resided. Appellant and Gladys occupied the same room and the same bed, and he held her out as his wife. This continued for several months, after which she returned to her mother’s home. While there, he wrote several letters to her. These were written during the month of May, 1922. Some of them were addressed: “Dear Wife and Baby” and were affectionate in their tone, though they stated no specific facts 'except that he was sending some money and. some pictures of the baby.

Appellant had an examining trial in July 11, 1922, in which Gladys Johnson testified. Her testimony was reduced to writing and signed by her. It was introduced by the appellant upon his trial. In it was embraced no fact not revealed from other testimony, except that she said that on going to Houston on January 2, 1922, she and appellant went to a certain preacher and were married; that the appellant had previously arranged with the preacher; that he delivered an envelope to him and the marriage ceremony was performed; that after this they went to the abode provided by the appellant, at which they lived.

Touching the marriage in January, appellant testified, in substance, that, after his marriage to Ester Benair,. Gladys Johnson charged him with bigamy “and says that I remarried her over again by the Reverend Lee.” “She téstified in court to that effect.” Appellant then caused her testimony to be read, to which reference has been made.

Appellant seems not to have been represented by an attorney upon the trial. No objection was made to any of the testimony introduced; nor was there a motion to exclude it. This appeal is based upon the proposition that the letters in question were confidential communications between husband and wife, and were privileged. ' Our statute on the subject, so far as pertinent, reads thus:

“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 communications made while the marriage relation subsisted.” Article 794, C. C. P.

Another statute reads thus:

“The husband and wife may, in all criminal actions, be witnesses for each other; but they shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other.” Article 795, C. C. P.

In Brock v. State, 44 Tex. Cr. R. 340, 71 S. W. 21, 60 L. R. A. 465, 100 Am. St. Rep. 859, this court said:

“The wife of appellant was used ^s a witness by the state and gave evidence of a most damaging character against him. She was required to hold up before the jury the family quarrels, the family disturbances, alleged assaults upon her by appellant, as evidence against him.”'

The statute (article 795, supra) forbade the state to call and use the wife of the accused as a witness against him. As a state’s witness, she was disqualified. This was known to the state’s counsel and the trial judge. Therefore no objection from the accused was required. It was so decided in Brock’s Case, supra.

In Ward’s Case, 70 Tex. Cr. R. 406, 159 S. W. 272, the accused introduced his wife as a witness in his own behalf. She was cross-examined by the state without objection. It was held that in the absence of such an objection the complaint that the cross-examination went beyond the permitted limits was^ not available on appeal. This distinction and principle has been affirmed in other cases. Some of them are listed in Willingham v. State (Tex. Cr. App.) 252 S. W. 530.

In the present case, several of the letters introduced and reád in evidence were written by the appellant'fo Gladys Johnson at a time when she, according to the state’s theory, was his wife. The letters were'identified by the appellant in testifying as a witness, and were received in evidence without objection. Our statute upon the subject embraces two phases. Article 795, C. C. P., forbids the wife to testify against her husband except in instances where he is charged with an offense against her. The appellant’s wife was not called to testify against him. Article 794, C. C. P., conferred upon the husband the privilege of refusing to testify to confidential communications by him to his wife,, and to have excluded the lettérs written by him to her. This was held in Gross v. State, 61 Tex. Cr. R. 182, 135 S. W. 373, 33 L. R. A. (N. S.) 477. In other words, appellant had the privilege of excluding from the evidence the contents of the letters in question and the fact that he had written them. The statute did not forbid the use of the letters against him as it forbade the testimony off the wife against the husband. In one case is established a privilege; in the other, a disqualification. He had but to object, and the court could not have used the letters nor the testimony relating to them. Gross v. State, 61 Tex. Cr. R. 176, 135 S. W. 373, 33 L. R. A. (N. S.) 477. By his acquiescence in the receipt of the testimony and the letters, he waived his privilege to exclude them. Wigmore on Evidence, vol. 4, §§ 2339, 2340; Hampton v. State, 7 Okl. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43; Tex. C. C. P. § 22; Sullivan v. State, 83 Tex. Cr. R. 477, 204 S. W. 1169.

The letter of December 9, 1921, was written at a time when Gladys was not the wife of appellant, and was not privileged because it was not a confidential communication from a husband to his wife. Underhill’s Crim. Ev. (3d Ed.) § 305, p. 429, note 36; also article 795, supra. While article 795, C. C. P., prohibited the state from calling appellant’s wife as a witness, it expressly authorized him to .call her. She had given testimony at the examining trial, which was reduced to writing. Appellant desired to introduce it in his behalf, to which the state consented. The state could not have used this evidence. Woodall v. State, 58 Tex. Cr. R. 516, 126 S. W. 591; Brock v. State, supra.

The state having waived its right to exclude the declarations of the wife as hearsay, no law known to us precluded the use of them by the appellant. The appellant on this appeal suggests that he was overreached and thereby induced to read the testimony in question. An examination of the record reveals that appellant voluntarily offered this record in connection with his direct testimony. He expressly stated more than once that he- desired it read to the jury. Nothing! is discovered in the conduct of the state’s counsel which would justify overturning the verdict which has "received the sanction ofi the trial court.

One conducting his own trial is at a disadvantage, and nnder such circumstances the record is scrutinized with special care by this court. In a case less than capital, the law does not make it essential that the accused be represented by counsel. This cannot be ignored by this court where the evidence is sufficient and no errors are presented for review.

We will add that the evidence, aside from that complained of on appeal, is deemed sufficient to show that Gladys Johnson was appellant’s lawful wife when he married Ester Benair.

The judgment is affirmed.  