
    CHRYAR v. STATE.
    (No. 11376.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    1. Homicide <⅜=>169(1) — Asking accused in murder case if his son had not forbidden him to beat his wife held not objectionable, as permitting district attorney to give testimony.
    In prosecution for- murder, in which state’s theory was that accused killed deceased in the dark, believing him to be accused’s son, permitting district attorney to ask accused if his son had not prohibited him from beating accused’s wife held not improper, as against objection that district attorney was giving testimony. .
    2. Criminal law <3=721 ½ (I)— State may comment on accused’s failure to produce his wife as witness if she apparently should know facts favorable to him.
    It is,the general rule that when it appears from evidence that accused’s wife knows facts which, if true, would be to his interest, the state may comment in argument on failure of accused to produce his wife as a witness.
    3. Criminal law <3=706 — District attorney’s action in tendering to accused his wife as witness in murder case held not reversible error.
    In prosecution for murder, in which accused testified that he killed deceased because he had improper relations with accused’s wife, and witness for defense, who had testified, on issue whether accused and his wife were living together, that shortly before homicide he had seen accused in rooming house with a woman whom accused claimed was his wife, identified accused’s wife as the woman he saw, held that action of district attorney in thereafter tendering to accused his wife as a witness, though not to be commended, was not reversible error.
    Í. Criminal law <©=»1111 (3) — -Under court’s qualification- of bill, held permitting accused’s ten year old daughter to testify against him over objection that she was not qualified was, not error.
    Action of court in permitting ten year old daughter of accused to testify against him in murder prosecution held not error, as against objection that witness was not qualified on account of her age, where court’s qualification of' accused’s bill showed that witness was qualified.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    Moses Chryar was convicted of murder, and he appeals.
    Affirmed.
    J. A. Collier, of Houston, for appellant.
    Horace Soule, Crim. Dist. Atty., and Nat H. Davis, Asst. Crim. Dist. Atty., both of Houston, and A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

According to the state’s testimony, appellant was standing on the sidewalk in the dark when deceased, Walter Taylor, came down the street. Without warning appellant shot deceased. Deceased ran a few steps and fell. Appellant followed him and shot him while he was lying in the street. Appellant’s son was about the size of and resembled deceased, and on the occasion of the homicide wore clothing similar to that worn by deceased. It was the state’s theory that appellant attempted to kill his son because, of domestic troubles which he (appellant) believed his son had brought about, and that on the occasion of the homicide he thought deceased was his son. Evidence in support of such theory was introduced by the state. Appellant testified that he killed deceased because he had had improper relations with' his (appellant’s) wife.

There were no objections to the court’s, charge. Five bills of exception are brought forward.

Bill of exception No. 1 is concerned with appellant’s contention that the court erred in permitting the district attorney to ask appellant if his son had not prohibited him from beating his (appellant’s) wife. The ground of objection was that the district attorney was giving testimony. As far as the bill of exception is concerned, no facts are stated therein which would negative the propriety of the question. The bill merely contains the question, the negative answer given by appellant, and the ground of objection. In view of the fact that the extreme penalty was assessed we have consulted the statement of facts to determine whether error was committed in permitting the district attorney to ask the question complained of. We are of the opinion that under the facts the question complained of was proper as against the objection made. If the conduct of appellant’s son had been such as to create in appellant’s mind ill will and hatred toward him, the interference of his son with the mistreatment by appellant of his (appellant’s) wife would have 'supported the state’s theory that appellant intended to hill his son 'át the time he shot deceased. Hence testimony to such effect would have had material bearing on the appellant’s state of mind at the time the homicide was committed.

By bill of exception No. 2 appellant complains of the action of the district attorney in tendering to him his wife as a witness. It was an issue as to whether appellant arid his wife were living together. Á defense witness testified that she had seen appellant shortly before the homicide ⅜, a-, rooming house with a woman whom appel-’ 1-ant claimed was his wife. Appellant’s wife, being under process, was at this juncture brought into the courtroom by state’s counsel for the purpose of being identified by the witness. After having been identified by the witness, state’s counsel tendered to appellant his wife as a witness. It was appellant’s theory that he killed the deceased because of improper relations with appellant’s wife, and in support of such theory he testified in effect that his wife had advised'him that she and deceased were having illicit relations. It is. thus seen that appellant’s wife was in the position to support his contention that'!he killed deceased because of the fact that he had alienated 'his wife’s affections and engaged in reprehensible conduct where she was concerned. It is the general rule that when it appears from the evidence that the wife of the accused knows facts which, if true, would be to his interest, the state may comment in argument on the failure of the accused' to produce his wife as a witness. Cole v. State, 92 Tex. Cr. R. 368, 243 S. W. 1100, and authorities cited; Coffey v. State, 60 Tex. Cr. R. 73, 131. S. W. 216; Branch’s Annotated Penal Code, § 372, and authorities • cited. In the case of Cole v. State, supra, and Norwood v. State, 80 Tex. Cr. R. 563, 192 S. W. 248, exceptions to the rule last stated were noted. The facts of the instant case, however, are not within the exceptions announced in said cases. In Coffey v. State, supra, in passing on the question under consideration here, the court was confronted, with a similar state.of facts. While under cross-examination the appellant in that case stated that he thought he could prove certain facts by his wife which were favorable to him. The state thereupon tendered to him his wife as a witness. íhis court, speaking through Judge Ramsey, said it found no reversible error in the action of the state and referred to the fact that it was well settled that argument and allusion can be made ,to the failure of the accused to use his wife as a witness. In the case of Holland V. State, 60 Tex. Cr. R. 117, 131 S. W. 563, the question opw under consideration was discussed by Judge 'McCord, and the action of the district attorney in tendering to the accused his wife as a witness was held under the facts of the case not to constitute reversible error. However, -it was stated in the opinion that the 'conduct of the district attorney in the respect 'mentioned was improper and ill-, advised. In the case of Moore v. State, 45 Tex. Cr. R. 234, 75 S. W. 497, 67 L. R. A. 489, 108 Am. St. Rep. 952, 2 Ann. Cas. 878, ' the court held that the action of the district attorney in placing the accused’s wife on the witness stand and asking her questions proving or tending to prove that the accused had married her for the purpose of suppressing her testimony was prejudicial error, in that it forced the accused to object to his wife testifying against him and aided the theory of the state that the accused had married the witness for the purpose of suppressing her testimony. In Coffey v. State, supra, in drawing a distinction between the facts of the Moore Case and those then under consideration, Judge Ramsey said:

“But in that case counsel for the state went further, and not only placed Mrs. Moore upon the witness stand, but in the presence of the jury asked her certain questions concerning' the facts of the case, with the result that Moore felt impelled and called upon to object to her testifying, and the proof went much further than merely showing that Moore’s wife was present and able to give testimony, if desired, but manifestly, while not in terms so stated, the court must have held that the facts in the Moore Case [45 Tex. Cr. R. 234, 75 S. W. 497, 67 L. R. A. 489, 108 Am. St. Rep. 952, 2 Ann. Cas. 878] were in legal effect a use of the wife against the husband as a witness.”

We are of the opinion that the action of the district attorney in tendering .appellant’s wife to him as a witness was not to be commended. However, the case of Coffey, supra, is direct authority for our holding in the instant case that such action on the part of state’s counsel did not constitute reversible error. Under {he facts of the case at bar we are unable to reach the conclusion that the tender of the wife of appellant to him as a witness could have been more harmful than allusion in argument by the state’s counsel to.his failure to use her as a witness.

By bill of exception No. 3 appellant complains of the action of the court in permitting his ten year old daughter to testify against bim. The court’s qualification of appellant’s bill shows that the witness was thoroughly qualified. Hence, against the objection that the witness was not qualified on account of her age, the bill fails to manifest error.

Bills of exception Nos. 4 and 5 complain of the argument of the district attorney. We are unable to agree with appellant that said bills as qualified manifest reversible error.

Finding no error warranting a reversal, the judgment is affirmed.

PER OURIAM. The foregoing opinion of the Commission'of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the'court.  