
    Frank Harville v. The State.
    No. 3961.
    Decided October 28, 1908.
    1. —Incest—Dismissal—Severance—Allusion to Defendant’s Failure to Testify.
    Where upon trial for incest the defendant was jointly indicted with the woman upon whom he was alleged to have committed the offense, and a motion for severance was granted, and the defendant placed on trial first on his own motion, when the State dismissed the case against defendant’s codefendant and tended her as a witness to defendant, there was no error in the court’s ruling sustaining the State’s action.
    2. —Same—Evidence—Impeaching Witness.
    Upon trial for incest there was no error in permitting the State to show that a witness had made the same statement out of court -as he did upon trial, the defendant having cross-examined said witness upon this subject.
    3. —Same—Evidence—Husband and Wife.
    Upon trial for incest it was error to permit the State’s counsel to propound the question to a .State’s witness whether he -ever heard any member of defendant’s family deny that the woman with whom defendant was alleged to have committed the incest was the step-daughter—the daughter of defendant’s wife; as this was forcing the wife indirectly to testify against the husband.
    4. —Same—Definition of Crime—Divorce or Death of First Spouse.
    Upon trial for incest it was reversible error to permit the witness to say that it was his general understanding that the first husband of defendant’s wife was dead. Divorce from or death of the first husband at the time of the second marriage should have been proved affirmatively before a conviction for incest by the alleged second husband could be had. Following McGrew v. State, 13 Texas Crim. App., 340.
    5. —Same—Argument of Counsel—Practice in District Court.
    Where the defendant was jointly indicted for incest with the woman with whom the alleged incest was committed, and the State had dismissed as to her and had tendered her to the defendant as a witness, who did not place her on the stand, it was improper for State’s counsel to allude to defendants failure to use her as a witness.
    Appeal from the District Court of Re’d! River. Tried below before the Hon. Ben H. Denton.
    Appeal from a conviction of incest; penalty, five years imprisonment in the penitentiary.
    The codefendant was defendant’s alleged step-daughter. The opinion states the case.
    
      8. W. Ilarman and W. W. Johnson, for appellant.
    Upon question of tendering eo defendant as a witness: Garland v. State, 51 Texas Crim. Rep, 643; 104 S. W. Rep., 899. Hpon question of argument of -counsel: Garland v. State, 51 Texas Crim. Rep., 643; 104 S. W. Rep., 899; Taylor v. State, 50 Texas Crim. Rep., 560; 100 S. W. Rep., 393; Gaines v. State, 8 Texas Ct. Rep., 618; Bryson v. State, 20 Texas Crim. App., 573; Jamison et al. v. U. S., 104 S. W. Rep., 872; State v. Weaver, 65 S. W. Rep., 311. On question of second marriage: Garland v. State, 51 Texas Crim. Rep., 643; 104 S. W. Rep., 899; Lindsay v. Freeman, 83 Texas, 259.
    
      F. J. McCord, Assistant Attorney-General, for the State.
   BROOKS, Judge.

Appellant was convicted of incest and Ms punishment assessed at imprisonment in the penitentiary for five years. Appellant and Lela May Brotherton were jointly indicted for incest. Appellant -asked for severance and was placed on trial. The case against Lela May Brotherton was dismissed. The facts in substance Show that appellant and Lela May Brotherton were seen to leave the public road and go out into the river bottom, by the prosecuting witness: His statement of the facts is as follows: “After they passed me there was some free tops that had fallen and the leaves were still green on the trees, and that put them out of my sight, and when I could see them again they were out of the buggy and she walked up against a sapling, or pretty close to a sapling, and he pulled up her clothes and it looked to me like, the best I could see, that he pulled out his male organ. I don’t know that he had it out, only from the action that he made from that part of his body. After he went through -those actions, as if taMng out Ms organ he went right up against ’her, -the best I could tell about it, and placed the lower part of his body against the part of her body Where the female organ would be, and -after he got in that position he was in motion like having intercourse with her. That is all I could say. Her clothes were ©till up at this time. I think I was some fifty or sixty yards from them, could have been closer or further. There was nothing between me .and ‘them to obstruct my view. Of course, it was heavy timber, but no undergrowth at that place. It was not very long that I saw Mm continue these motions. I think she saw me. It looked like she pushed him away from her, the best I could tell, and then she got in the buggy, and just as quick as he could get himself iu shape, from tire way he was acting, he got in the buggy. His back was to me and he was standing np and ‘he just bent himself over this way -and it seemed to me that he was working with his organ, and as quick as he could do that he got in the buggy and drove away, not very fast. Heither one of them took off their hats while I saw them,. Frank Harville’s back was to me at the time they were out of the buggy, it was not all the time. When they got out of the buggy, they were going from me and of course his back was to me. I was something like fifty or sixty yards from them. I could not tell whether he had Ms privates out, only just from the actions led me to believe that he did. I never saw them. I never saw his pants unbuttoned, I just saw Mm acting like he was unbuttoning his piarais. I could not say hw much taller Frank is than the woman, because I never measured them. The place th'alt I saiw them was supposed to be reasonably level ground. They we:r- both standing up. The woman was some lower than the man, there may be a foot ’difference. I have not measured them, I don’t know.”

Bill No. 1 shows that after the jury was empaneled and the indictment read to them, but before introducing ¿any testimony in the above case, the State, through her district attorney, asked the court to dismiss the case against Leta May Brothenfcon, who was indicted jointly with the defendant and tendered the said Leta May Brofherton to the defendant as a witness in his behalf. Defendant objected to the dismissal of the case against Leta May Brofherton because there was one case already pending before the court and the jury empaneled in the trial of this case, and the court -could not act upon another case at the same time: That there has been a motion to sever and defendant’s motion made before the court to quash the indictment against this party; and'' the -court "has seen fit to overrule both of those motions, an-d counsel fa-r 'appellant asked a severance in the case, the court having forced them to ask for a severance by refusing to dismiss the -case against her; because it is an indirect allusion to a defendant’s testimony before the jury in the case; because she is a defendant and the counsel says that he fenders her to counsel for appellant as a witness, she being one of the defendants who is -Charged in this case, and because it is an allusion to th-e defendant’s right to- testify or failure to testify. The bill is approved with this explanation: “That the defendant had filed a motion to sever and it had been granted and he was- placed on trial first on his own motion.” There was no error in the ruling of the court. Where two parties are jointly indicted the district attorney, for proper cause and showing, cam dismiss the case. There being no prosecution it is not -amiss to tender him or her to the appellant as a witness if the appellant desires to- use him.

Bill No. 2 shows that the district attorney asked 0. M. Tubbs the foil-owing question, to wit: “When you first met Rosson in here on the day of the election day two years ago, I will ask you what 'he then told you as to who it was that he saw in this attitude down there on the creek?” Defendant objected to the question, because they have no right to prove what the witness said to- other peo-ple in the absence of this defendant when that witness is present to- testify in the case. The objection was on the ground of hearsay. The district -attorney then asked: “I will ask you if it is not a fact that he told you about this when he first came into town or soo-n after he got into town?” A. “Well, I do not kno-w that it was soon after 'he got here; it was not very long. I never Saw Mr. Criner until the next day. Mr. Rosson told me that he thought that he Imew this party by sight.” The court .appends this explanation: “The Court of Criminal Appeals will see upon examination of the facts, that the defendant upon cross-examination of Jnio. Criner proved that the witness n'ad made different statements out of the court to what he did on -the trial and for this reason this testimony was admitted.” Under the explanation of the court the ruling is correct.

Bill No. 3 shows that the State’s attorney propounded to J. W. Westemnan the following questions: “Now did you ever hear Frank Harville or any member of his family deny this being the stepdaughter—the daughter of his wife?” Defendant objected on the ground that same is hearsay, immaterial and not pertinent to the issue in this case. This testimony should not have been admitted. It is indirectly forcing the wife to testify against her husband since she certainly was a member of appellant’s family. The State under this statement, is permitted to prove that the wife never denied the fact that her daughter was appellant’s step-daughter.

Bül of exceptions No. 4 shows the State’s counsel proved the following by J. W. Wesferman: “Do you know the general understanding as to where Mrs. Brotherton’s first husband died and when, he died?” Defendant -objected to the question because it would be hearsay. The court overruled the objection. The witness answered that “he was understood to be dead. I have heard Mrs. Harville state that he was dead.” The defendant objected to- any statement made by Mrs. Harville, because no statement made by the wife is- admissible against the husband. All -of which objections were overruled. The witness continued to 'answer as follows: “He died over at Mt. Vernon; some follow killed him. Mr. Harville has been living down in that country about ten years; I did not know Mi's. Brotherton before she married Mr. Harville.” This bill is approved with this explanation: “No objection was made to the first question in the bill, that is, T have heard Mrs. Harville state that he was1 dead.’” In the case of McGrew v. State, 13 Texas Crim. App., 340, appears the following language: “Nowhere, however, is it made to appear that at the time of the second marriage the first had been annulled, either by divorce or by the death of the first 'husband. Upon this point the only evidence in the record is a statement in the testimony of Ann McGrew to the effect that finy first husband died in Grimes County, as I understand.’ From this statement it is extremely uncertain that the first husband is dead; and, if dead, did he die before or after her -second marriage? If after, then the second marriage was a nullity, provided she had not been divorced from him, and She could not become the lawful wife of McGrew by virtue of such illegal marriage. If dhe was not hi-s lawful wife, then the illicit connection of McGrew with her daughter by the previous marriage, however reprehensible in morals, would not constitute the crime of incest in law. Divorce from or the death of the first husband at the time of the second marriage should have been proven affirmatively, because absolutely essential to the establishment of the crime charged', and- to the validity of a conviction, under the circumstances stated.” Cleanly, under this authority, 'the ruling of the court was erroneous in permitting the witness to ¡state that he understood that 'her former husband was dead.

Bill Ho. 5 complains that the distract attorney commented upon the fact that appellant did not put Beta May Brotherton upon ’the stand, she having been indicted conjointly with her step-father, the appellant, for tihe lorime that appellant was 'being tried for, the district attorney having previously dismissed the ease against her, and that the district attorney in1 his speech called! on the jury to consider appellant’s failure to put her on the stand, she being in attendance upon the trial, because it was a strong circumstance to show that he was guilty. The court appends to the hill the statement that no written charge was -requested by 'appellant to be given to the jury, to disregard such remarks. Upon another trial this argument should not be indulged.

For the errors pointed out the judgment is reversed and the ¡cause remanded.

Reversed and remanded.

Ramsey, Judge, absent.  