
    BELL v. STATE.
    (No. 5865.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1920.)
    L Criminal law <§=596(l) — Refusal of continuance for absence of cumulative evidence not error.
    Refusal of continuance for absence of witnesses was not error, where other witnesses at the trial testified to the same facts that absent witnesses would have testified to.
    2. Criminal law <§=6I4(3)— Refusal of fourth application for continuance, not showing diligence, held proper.
    Refusal of the fourth application for continuance for absence of witnesses, where application did not show when witnesses had been served with subpoenas, or that witnesses had ever appeared, held, proper; no diligence being shown.
    3. Criminal law <§=366 (6)— Statements of deceased, made soon after difficulty, held res gestm.
    In prosecution for murder, testimony of witnesses who had found deceased, as to statements made by him from half an hour to an hour and a half after difficulty, incriminating defendant, held admissible as part of res gestae.
    4. Witnesses <§=379 (2) — Contradictory statement held proper to impeach witness.
    In murder prosecution, where defendant’s wife, testifying for defendant, had testified that deceased had insulted her, and that she had informed defendant thereof before the homicide, cross-examination as to whether the wife had not told her sister at a certain time and place that deceased had not insulted her, and that all they had against him was that he had taken defendant’s pistol, held proper to impeach the wife.
    5. Witnesses <§=380(1) — Wife, testifying for defendant, can be impeached.
    A wife, testifying for her husband, may be impeached, as any other witness, Ay inconsistent statements, on a predicate relating to her testimony in chief.
    6. Witnesses <§=188(2) — Wife’s testimony as to statement to her by husband held privileged.
    Where witness for ‘defendant was asked if he had not made contradictory statement to wife, the admission of wife’s testimony as to such statement held reversible error, under Yernon’s Ann. Code Or. Proc. 1916, art. 794.
    7. Witnesses <§=195 — Communications between husband and wife privileged, in spite of subsequent divorce.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 794, communications between husband and wife are privileged, even though at time of trial the husband and wife are separated or divorced.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Earl Bell was convicted of murder, and he appeals.
    Reversed and remanded.
    R. H. Jones, of De Kalb, and Mahaffey, Keeney & Dailey, of Texarkana, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Bowie county for the murder of one George Petties, and his punishment fixed at 15 years’ confinement in the penitentiary. This is the second appeal; the former opinion appearing in 213 S. W. 647.

When the case was called for trial, appellant asked for a continuance, which appears to have been his fourth application. To the refusal of this application, exception was taken, and the matter is here urged as error. Bert Seals was one of the absent witnesses named in said application. Wé have carefully examined the testimony stated in said application as expected from Bert Seals, and also expected from Chester Waller and Bertha Harmon, and are of opinion that, inasmuch as a number of other witnesses testified for defendant to the same facts, the testimony of said witnesses would be cumulative, and it was not error to refuse the application as to them. As to the witness Eargle, no diligence is shown. It is stated in said application that said -witnesses had been served with subpoenas in Bowie, Titus, and Hopkins counties; but it is not stated or shown when such service was had, nor that said witnesses had ever appeared, the cause having been upon the docket for a number of years. The continuance was properly refused.

Appellant’s bills of exceptions Nos. 2 and 3 complain of the admission of statements made by deceased to Elihu Swink and Matthew Swink. We will not undertake to discuss the relative correctness of the bills of exceptions filed by the trial court and those filed by appellant as bystanders’ bills; the contents of both sufficiently presenting the matter from our viewpoint. It appears from the record that the Swinks were the first persons who appeared at the point where deceased was lying in the road, where he fell when shot. The Swinks came up in a car, and, finding the deceased lying in the road, shot through the body, they asked him about it, and he replied that Earl Bell shot him about 20 minutes before the Swinks came. One of them then asked him what Earl Bell shot him for, to which deceased replied that he shot him for nothing. Deceased being unable to move, these parties then took him in their car and carried him to his home, where he died within an hour.

This testimony was objected to, because it was hearsay, out of the presence and hearing of appellant, and was the opinion of deceased. Mr. Branch collates numerous authorities, on pages 52 and 53 of his Annotated Penal Code, supporting the proposition that the statements of deceased, made a short time after the fatal difficulty, stating ,how same occurred, are admissible as res geste. In Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St. Rep. 720, the statements of deceased were made from half an hour to an hour and a half after the difficulty, and were held admissible as res geste. In Fulcher’s Case, 28 Tex. App. 465, 13 S. W. 750, a statement by deceased, made 30 minutes after the difficulty, was held admissible. See Castillo v. State, 31 Tex. Cr. R. 152, 19 S. W. 892, 37 Am. St. Rep. 794. That the deceased said, “He shot me for nothing,” would not make the statement inadmissible. Drake v. State, 29 Tex. App. 269, 15 S. W. 725; Clark v. State, 56 Tex. Cr. R. 293, 120 S. W. 179; Garrett v. State, 52 Tex. Cr. R. 257, 106 S. W. 389; Woods v. State, 221 S. W. 276.

We do not think any error appears in appellant’s bills of exceptions Nos. 4 and 5.

In his bill of exceptions No. 6, appellant complains because the state was permitted to ask the wife of appellant if she had not told her sister at a certain time and place that deceased had not insulted her, but that all they had against him was that he had taken Earl’s pistol. This was permissible. Appellant introduced his wife, and she had testified that deceased had insulted her, and that she had informed appellant thereof before the homicide. It is the settled law of this state that a wife, testifying for her husband, may be impeached, as any other witness, upon a predicate relating to her testimony in chief.

Appellant has a bill of exceptions to remarks made by the trial court concerning his witness King. Inasmuch as the case must be reversed upon another ground, we will not discuss this matter, further than to say that the remark of the court was unfortunate, and will not occur again.

The homicide occurred near the house of appellant’s brother, who testified as a witness for defendant, giving material testimony, if true. The state sought to lay a predicate to impeach said witness, by asking him if he did not tell his wife, after the shooting, that he did not see any of it, and upon his denial of having made this statement the state brought in his wife as a witness, who testified that he did come to where she was after the shooting, and did tell ,her that he did not see any of it. This matter is complained of by bill of exceptions, and we think both the predicate and the testimony of the wife are violative of article 794, Vernon’s C. C. P., which is as follows:

“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 communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense; and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial.”

This seems to forbid testimony from either spouse as to communications to or from the other, when same is objected to. The fact that the husband and wife are separated or divorced at the time of the trial would make no difference. They were husband and wife when the communication was made, and it would therefore be inadmissible.

There are a number of other errors complained of, which we do not deem it necessary to discuss.

For the error in the admission of said testimony, the case will be reversed and remanded for a new trial. 
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