
    VICKERS v. STATE.
    (No. 6789.)
    (Court of Criminal Appeals of Texas.
    May 10, 1922.
    Rehearing Denied June 21, 1922.)
    1. Criminal law <§=>608 — Denial of continuance for absence of witness held not error, as his affidavit showed he would not testify as claimed by defendant.
    Denial of defendant’s application for continuance for absence of witness, where the state produced an affidavit from the witness denying that he would testify as claimed by the defendant, and asserting that the defendant had requested him to so testify, but that he had declined to do so, held not error.
    2. Jury <§=>108 — Excusing venireman who stated that he had conscientious scruples against death penalty held not error in murder prosecution.
    In a murder prosecution, action of court in excusing a venireman who stated that he had conscientious scruples with reference to inflicting the death penalty, even though one man kills another in cold blood, held not error.
    3. Criminal law <©=>1166'/⅛ (6) — Rulings with reference to venireman held not reversible error.
    Rulings with reference to venireman held not ground for reversal in the absence of a showing that defendant exhausted his peremptory challenges, or that any objectionable juror served upon the case.
    4. Homicide <§=>203(1) — Dying declaration must have been made when deceased was conscious of approaching death.
    In a murder prosecution, before the state could offer the statement of deceased as a dying declaration, it was necessary to show that it was made when the deceased was conscious of approaching death.
    5. Homicide <§=>216 — Testimony that physician advised deceased as to fatal character of wound admissible to lay foundation for dying declaration.
    In a murder prosecution, the state, in laying the foundation for the introduction of testimony as to a dying declaration of the deceased, could show that the doctor had advised him as to the fatal character of his wound, though the information was imparted to him in the absence of defendant.
    6. Criminal law <§=>456 — Nonexpert may testify as to sanity or consciousness of deceased when making statement claimed to constitute a dying declaration.
    In. a murder prosecution, any witness present at the time when the deceased made statement claimed to constitute a dying declaration, even though not an expert, may testify as to the consciousness or sanity of deceased at the time the statement was made, subject to cross-examination as to his means of knowledge.
    7. Criminal law <§=>534(2) — Homicide <§=> 174(6), 220 — Testimony as to condition of deceased’s pistoi shown to have been hit by shot held admissible to corroborate dying declaration and confession, and to show what happened at time of killing.
    In a prosecution for murder, in which the testimony as to the condition of deceased’s pistol as to a shot that had gone through deceased’s right hand indicated that one of the shots from the person who had killed the deceased had struck the deceased’s pistol, testimony by the deceased’s wife and son as to the condition of the deceased’s pistol before the shooting, and as to the manner in which the handles which had been found at the scene of the shooting fitted the deceased’s pistol, ¡held admissible where such testimony tended to corroborate deceased’s dying declaration, and show the truth of defendant’s alleged confession, and since such testimony tended to show what actually happened at the time of the killing.
    8. Criminal law <§=>! 153(5) — Permitting witness who had not been placed under the rule with other witnesses to testify held not ground for reversal.
    Permitting a witness who had not been placed under the rule with the other witnesses, because his name was not called at the time the other witnesses were sworn, though the htate’s witness thought he had been sworn, and had gone out with the other witnesses, to testify, held not ground for reversal, in the absence of a showing that the court in so doing abused its discretion.
    9. Witnesses <§=>282½ — Refusal to permit cross-examination constituting unnecessary repetition ho!d not error.
    In a murder prosecution, in which a witness for the state had testified that the defendant had told witness the night of the killing that he “had killed a man,” and that witness had not told the officers because he was afraid of defendant, and had on cross-examination several times explained that the reason he did not tell the officers was because defendant had told him that, “if anybody ever turned him up for anything he had done, that, if he (defendant) did not get them, his brother would,” refusal to permit defendant to further cross-examine the witness as to his reason for not telling the officers held not error.
    10. Criminal law <§= 1159(3) — Jury’s finding on controverted questions of fact are conclusive on appellate court.
    The findings of the jury upon controverted questions of fact are binding upon the Court of Criminal Appeals.
    11. Criminal law <§=>531 (3) — Confession held not to. have heen procured by duress.
    In murder prosecution, evidence held to justify conclusion that defendant’s written confession was not procured by duress.
    12. Criminal law <§=>448(12) — Refusal to permit officer to testify as to whether evidence gathered by him did not point to another person held proper.
    In a prosecution for murder, in which a witness had testified for the state that the defendant had told him that he had killed a man during the night during which the deceased had been killed, and in which it was the theory of the defendant that such witness had himself killed the deceased, refusal to permit answer to a question asked by defendant of a certain officer, “You wanted to file a complaint against A. (witness), didn’t you, and, in looking up the case against the defendant, did you not gather evidence pointing to A., too, which showed his connection with this offense?” held proper; such question calling for the conclusion of the witness.
    13. Witnesses <§=>393(6) — Withdrawal from record of defendant’s testimony on a former trial, except portion introduced for impeachment, subject to the right of both parties to introduce any portion thereof, held not error.
    Where a portion of the testimony given by defendant on a former trial was admitted for impeachment, and it was thereafter agreed by the state and the defendant that defendant’s entire testimony on the former trial might be considered in evidence, but only that portion offered for impeachment went to the jury, the court’s withdrawal from the record of all testimony on such former trial, except that introduced for impeachment, subject to the right of both parties to reopen the case and introduce any particular portion of it, held not error.
    14. Criminal law <§=>829(1) — Refusal of requested charges, covered by main charge in so far as applicable, held not error.
    Refusal of special charges which, in so far as applicable, had been covered by the main charge held not error.
    15. Witnesses <§=>52(8) — Wife cannot be compelled to testify as to statement by husband prior to marriage to impeach husband.
    In a murder prosecution, where defendant claimed that another person had committed the cime, refusal to compel the wife of such other person to testify that such person prior to their marriage had told her that he had killed the deceased, for the purpose of impeach-. ing the husband, who had previously testified that he had not made such statement, held not error; such testimony being incompetent under Code Cr. Proe. 1911, art. 795, as to incompetency of wife’s testimony against husband.
    16.Homicide <§=>354 — Killing committed in effort to perpetrate robbery held to justify death penalty.
    The shooting of deceased in an effort to perpetrate robbery held to justify a verdict of guilty of murder inflicting the death penalty.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    Ernest Vickers was convicted of murder, and he appeals.
    Affirmed.
    Callaway & Shead, of Port Worth, for appellant.
    Jesse M. Brown, Dist. Atty., and W. R. Parker and W. H. Tolbert, Asst. Dist. Attys., all of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted for the murder of one J. B. Doper, his punishment being assessed at death.

J. B. Doper was killed on the night of October 20, 1920. He was special officer for the Frisco Railroad, and left the Frisco freight office about 8 or 9 o’clock, going towards the city of Fort Worth. A short time after he left shots were heard in what is known as the T. P. reservation, and Doper was found badly wounded. He was taken to the hospital, and made a dying statement to the effect that, as he was crossing the “reservation,” a man came up to within 18 or 20 feet of him and told him to stick his hands up, and that he (Doper) reached for his own gun, and when he did this the man shot him twice. He described the man as being of slight build, dressed with a dark cap, dark coat, and light trousers.

Many months seem to have intervened before any definite information reached the officers as to the identity of the party committing the offense. Bennie Atkinson testified that at the time of the killing he was acquainted with appellant, but knew him under the name of “Blackie” Kelly, and did not know his name was Vickers; that appellant had supper with witness on the night of the killing at his mother’s house; that after supper he and appellant drove around for a while in a car belonging to witness’ mother; that appellant-got out-of the car about 8:30, and said he was “going out to make some money, but did not say how”; that appellant had a pistol with him at that time. • He next saw appellant about 30 or 40 minutes later, when he again- came to witness’ house; he came running in and told witness he had killed a man on the T. P. reservation; said he had told him “to throw his hands up, and he' failed to do it, and he shot him.” He requested witness to get some oil for him to clean his pistol, which the witness did. ‘He took two empty shells out of the gun. This witness said appellant had on a blue cap and blue serge suit, but slipped on a pair of khaki trousers over the blue ones before he left his house the first time. Witness explains that he had never told anything about the occurrence, because from what appellant told him he was afraid violence. would be done him if he told what he knew.

The state offered in evidence appellant’s confession, which, omitting immaterial parts, was as follows:

“That evening about 7 o’clock Bennie and I talked about making some money. I had my pistol, a 44 — 40 colt double action with me. He and I got in his car. I bad my pistol loaded with .38-caliber Winchester cartridges. Bennie and I drove on up town and then later we drove out South Main street, passed the T. & P. station, and crossed the tracks just north of the T. & P. roundhouse. I got out of the ear and started out across the T. P. reservation, following the trail in a southwest direction. At the time I had on my coat,' a brown checked cap, and light-colored pants. After I had gone a short ways up the trail, I saw a man coming down the trail meeting me. When I had come to within, about 15 feet of him, I told him to ‘Stick ’em up,! but he did not stick, ’em up, but looked as if he was reaching for his gun. I, of course, already had my gun on him, and I fired at him three times, and then ran back down the 'trail in the direction that I had come from. I heard his gun fire one time. I went back to where the railroad tracks cross South Main street just north of the T. & P. roundhouse, and caught a passenger coach that was being switched going east. 1 rode the passenger coach until it got to the viaduct on Boaz street, and I jumped off and went back to Bennie Atkinson’s house. Bennie had driven on south when I got out of the car on South Main street, and was supposed to wait for me on Railroad avenue, but when I. got back to his house after the. shooting he was already there. I went on in and told him all about it there at that time.”

Witness Lewis testified that he was driving in his car near the T. P. reservation, and heard the shots, and immediately after saw a man running across the road directly in front of his car; the man had on a blue cap, dark coat, and lighter colored trousers; that as he passed in front of his automobile and struck the railroad track he half turned toward the car, and witness had a clear view of his face, and that appellant resembled the man he saw.- Appellant testified, denying the killing, and claimed that at the time it occurred he was in his room with one Clarence McCorley; that he had seen Bennie Atkinson that night, and that Bennie had his (appellant’s) pistol; that the next morning Atkinson told him that he (Atkinson) had a “shooting scrape out there the night before,” and pulled the pistol out from under the bathtub, and took some empty shells out of it, and gave him (appellant) the gun. We deem it unnecessary to make a further detailed statement of the facts. Some of them will be disclosed in the discussion of questions raised by bills of exception.

Continuance was applied for on account of the absence of Clarence McCorley. It was alleged that the witness would testify that he was in the city of Fort Worth the night of the killing, and spent the night with appellant, and was with him at a rooming house at the time deceased was killed upon the T. P. reservation. The action of the court in denying the continuance was one ground upon which motion for new trial was urged. The state controverted the motion, and attached an affidavit from the witness denying that he would have testified as alleged, but asserting that he was not in Fort Worth when the killing occurred, but was in the state of New York. The affidavit further states that appellant had requested the witness to swear that he was with appellant upon the night of the killing, but witness had declined to do so. No error was committed in refusing the continuance.

J. A. Gibbons, a venireman, answered that he had conscientious scruples with reference to inflicting the death penalty. The court asked him if the severity of the crime would affect his views, to which he replied there might be some cases in which he could do it; the court then asked, if a man killed another in cold blood, without any reason, would he inflict the death penalty, to which he answered, “I don’t hardly think I could,” Avhereupon he was excused. In view of the character of the instant case, i,t would have been manifestly unfair to the state to have retained the juror. The court ruled correctly in excusing him.

Veniremen Wetsett and Crawford were challenged for cause by appellant, and, upon the challenge being overruled, were challenged by him peremptorily. Venireman Evans was challenged for cause, which was overruled. It is not shown that he served on the jury. Objections were made to certain questions propounded by the state to venireman Moreland. The state challenged him peremptorily. It is not necessary to determine whether the court was in error in his rulings with reference to the last four named veniremen. If he was, appellant does not bring himself within the rule whereby it would avail him. It is not made to appear that he exhausted his peremptory challenges, or that any objectionable juror served upon the case. Sections 642, 543, Branch’s Ann. P. O., pp. 278-280.

Over the objection of appellant (bill No. 7) the doctor was permitted to testify that he discussqd the seriousness of his wound with Mr. Loper, and told him in all probability it was a fatal one. W. H. Tol-bert testified to a dying declaration made by Loper. As a predicate therefor the witness said Loper told him he knew he was going to die, and requested witness to send for Loper’s family; that Loper was conscious, talked in a perfectly rational manner, and was sane. The only objections presented by the bill to the witness’ statement that Loper was conscious and sane in such a way as to be considered are as being a conclusion, and because he was not an expert. Before the state could offer the statement of deceased as a dying declaration, it was necessary to show it was made when the declarant was conscious of approaching death. To do this it was pertinent to show that the doctor had advised him as to the fatal character of his wound. Morgan v. State, 54 Tex. Cr. R. 542, 113 S. W. 934; Douglas v. State, 58 Tex. Cr. R. 122, 124 S. W. 937, 137 Am. St. Rep. 930. That the. information was imparted to the wounded man out of the presence of appellant does not render proof of it inadmissible. It would be a rare case, indeed, where it could be done in his presence. Neither is it required that a witness be an expert to testify to the consciousness or sanity of one making the statement. Any witness present at the time may testify to such matters, subject to cross-examination as to his means of knowledge. Lyles v. State, 48 Tex. Cr. R. 119, 86 S. W. 763.

In his dying declaration deceased stated that when the party who shot him got within a short distance of him he told him to stick his hands up, and deceased reached for his own gun, and when he did this the man shot him. Appellant’s confession is practically to the same effect. When deceased’s pistol was found the guard was mashed in against the trigger, and, among other wounds, a shot had gone through his right hand. This and the condition of his pistol indicated that one shot from the robber had struck the pistol of deceased. Witness McKinney testified that at the scene of the shooting he found the handles of a pistol. The wife of deceased identified his pistol, and testified that the last time she saw it prior to the killing the handles were on it. A son of deceased placed the handles which had been found by McKinney on his father’s pistol, and testified that they fit the same. The testimony of McKinney and of the wife and son of deceased was objected to by appellant as shown in his bills of exception Nos. 8, 10, and 11. We are unable to discover any error in the admission of this testimony. It tended to corroborate not only the statement of deceased in his dying declaration, but also to show the truth of appellant’s confession, and to throw light upon the actual happenings at the time of the killing.

The witnesses had been placed under the rule. When Charles Holland was called to testify by the state appellant objected, because he had been in the courtroom and had heard the evidence of some of the other witnesses. It appears that in some way Holland’s name was not called at the time the witnesses were sworn, but the state’s attorney thought he had been sworn, and had gone out with the other witnesses. When called to testify it was discovered that he had not been sworn, whereupon he was sworn by the court, and was permitted to testify. Matters of this kind are almost exclusively within the discretion of the trial judge, and the bill of exception shows no abuse of such discretion in this instance. Section 344, p. 197, Branch’s Ann. P. C.

After Atkinson had testified that the night deceased was killed appellant told him he “had killed a man,” and that it was some time after the killing before witness told the officers because he was afraid of appellant, he was asked what words appellant used that seared him. Objection was interposed and sustained on the ground that he had already answered this question a number of times. An examination of the statement of facts reveals that this witness upon cross-examination had several times explained that he did not tell the officers what he knew because he was afraid to say anything, for the reason that appellant had told him, “if anybody ever turned him up for anything he had done, that, if he (appellant) did not get them, his brother would.” Counsel for appellant seems to have been given wide latitude in the cross-examination of this witness, and properly so, as his attitude before the jury was of such a character as to subject him to suspicion; but there was no abuse of the court’s discretion in declining to permit unnecessary repetitions of what the witness had stated a number of times theretofore.

Appellant resisted the introduction of his confession on the ground that it was not voluntarily made; that he had been improperly induced and coerced to make the same. Matters bearing upon this issue are presented in bills of exception Nos. 13B, 14, 15, 18, 20, 22, and 23. Some of the bills are incomplete, and not in proper form, and we might decline to consider them for this reason; but, as this question is an important one, and vital to appellant’s interest, we will group the bills and consider them together. The first information the officers at Fort Worth had connecting appellant with the killing of J. B. Loper came from Bennie Atkinson. He did not know appellant as Vick-ers, but only knew the man about whom he gave the information as “Blackie” Kelly. He told* the officers he understood the man he knew as Kelly lived near Belton, and had some relatives there who were blacksmiths. The Fort Worth officers went to Belton inquiring for “Blackie” Kelly, and were informed by the Belton officers that they knew of no family by the name of Kelly suiting the description, but, from all the information the Port Worth officers had, the Belton officers thought it suited appellant, who at that time was in jail in Belton, on what charge is not disclosed from the record. The Port Worth officers were not satisfied to proceed upon the information received from Atkinson until they were convinced that “Blackie” Kelly and Ernest Vickers were one and the same person. In order that they might know this Jesse E. Martin, the assistant district attorney, and Mr. Rhodes, the Port Worth detective, took Atkinson to Belton. Martin was not satisfied to act upon Atkinson’s identification, but wanted to see for himself whether Vickers and Atkinson were acquainted with one another. Vanoy, a deputy sheriff at Belton, placed Martin and Atkinson in jail as automobile thieves. It was at once apparent that Vickers and Atkinson were acquainted, and appellant asked Martin what he was in jail for. According to Martin’s testimony, he declined to answer, whereupon appellant told him he could have confidence in him (appellant), and that if he had any doubt about it Atkinson could tell him (Martin) that “Blackie” was all right.

In order that there may be no misapprehension as to how what occurred in the jail at Belton got into the record, we would observe here that the whole matter was developed by appellant, and not the state. After Martin became convinced that appellant was the same man who had been known to Atkinson in Port Worth as “Blackie Kelly,” Martin and Atkinson were taken out of jail, and appellant afterwards brought to the district attorney’s office in Belton. He was there informed by Martin that he was the assistant district attorney at Port Worth, and that Mr. Rhodes was a detective from the same place. Appellant was taken to Port Worth that night in company with Officers Vanoy, Rhodes, Martin, and the witness Atkinson. Appellant testified that Martin told him while he was in jail in Belton that he (Martin) was an automobile thief, and that after he was taken to the district attorney’s office Martin also told him that “they had the goods on him, and that he might as well come across and tell the truth, or they would ‘go to the creek’ with him.” Appellant also claimed that the officers having him in charge all the way to Port Worth were in various ways trying to induce him to make a statement, and that after they got to Port Worth the confession introduced in evidence was written out by Martin, and that he was forced to sign the same by Rhodes, who hit him over the head with a pistol.

All of the matters testified to by appellant which would indicate that any improper advantage was taken of him, or that he was coerced in any way, or induced to make the statement, were denied by Martin and the other witnesses. Vanoy and Rhodes testified that at some point on the trip from Belton to Port Worth they told appellant that it looked ' pretty bad for him, and if they were in his place they would tell the truth about it. After they left Cleburne on their journey appellant told Vanoy that he would tell the truth about it, and asked Vanoy to call Rhodes and Martin back to where Vanoy and appellant were seated. When Martin and Rhodes went back appellant signified his willingness to tell them about it, but Martin declined to talk to him at that time, telling him to wait until they got to Port Worth. After reaching B’ort Worth appellant was taken to the district attorney’s office, properly warned, and made the confession introduced in evidence by the state. On the issue raised by appellant’s evidence, the court instructed the jury that they could not consider such confession unless they found from the evidence beyond a reasonable doubt that it was made voluntarily, and without being induced by any threats or any promise of assistance. The finding of the jury upon controverted questions of fact are binding upon us. We find nothing in the record which would justify the conclusion that the jury was unauthorized in finding the confession to have been voluntarily made. Upon the conceded fact that the assistant district attorney permitted himself to be placed in jail at Belton with the witness Atkinson, we do not regard that as a circumstance upon which could be based any well-founded objection to the confession. Nothing was said or done by Martin while observing the conduct of Atkinson and appellant toward one another while in jail that can in any way be regarded as a threat or improper conduct calculated to induce appellant to have made the subsequent confession. To us it appears to have been a commendable desire on the part of the officers to satisfy their own minds, independent of the statement of Atkinson, that appellant, under the name of “Blackie” Kelly, had prior to that time known Atkinson, and was the man they were seeking, before proceeding further against him upon so serious a charge as that of murder.

We have examined appellant’s bills of exceptions 13, 16, and 17, and are of opinion they present no error. We do not deem it necessary to discuss them at length.

It appears that while Officer Vanoy was upon the witness stand he was asked the following question by counsel for appellant:

“You wanted to file a complaint against Atkinson, didn’t you, and in looking up the case against the defendant did you not gather evidence pointing to Bennie Atkinson, too, which showed his connection with this offense?”

Objection to this question was sustained. Appellant’s bill shows that, if permitted, the witness would have answered the question in the affirmative. This testimony appears to have been offered by appellant for the purpose of showing that evidence pointing to the guilt of Atkinson was discovered, it being appellant’s theory that Atkinson was the man who committed the offense. The action of the court in declining to permit Vanoy to answer the question was not error. If appellant desired to show that Atkinson, and not appellant, committed the murder, he was bound by the ordinary rules of evidence in establishing his theory. The question simply called for the conclusion of the witness, and not for the statement of any fact pointing to Atkinson’s guilt.

Bill of exception No. 24 reflects the following proceedings: While appellant was testifying in his own behalf the state laid certain predicates for impeaching him, by asking if, on a previous trial, he had not sworn differently to what he was then testifying. Following' the predicate the state introduced certain portions of the testimony of appellant on the former trial. After this it appears from the bill that both counsel for the state and for appellant agreed that the entire testimony given by appellant on the former trial might be considered in evidence, but it was never read to the jury, and only that .portion went to the jury which the state had offered for impeachment. After the court had prepared his charge, and appellant had prepared his special charges, counsel for the state made a motion that all of appellant’s testimony on the former trial except that offered for impeachment be withdrawn from the record, 'for the reason that the state did not care to offer any other part thereof. The court withdrew from the record all of appellant’s testimony save that introduced by the state for impeachment purposes, but advised both the state and appellant that they might reopen the case if they desired, and introduce any particular portion of it if they saw fit to do so. Appellant excepted to this action of the court. If any part of the former testimony of appellant was upon the same subject, and related to the same matters which had been offered by the state to. impeach the present testimony of appellant, it was permissible for appellant to have introduced the same; but, after such permission was tendered by the court, no part thereof was offered by appellant, and the bill therefore presents no error. Only that part of the testimony on the former trial was admissible which may have been pertinent to the impeaching statements read by the state. It appears from the bill that counsel lor appellant waived the opportunity offered by the court to introduce any portion of the testimony which would have been pertinent to .that introduced by the state.

Bills of exceptions Nos. 25, 26, 27, and 28 relate to certain special charges requested by appellant, and which were refused by the court. In so far as the same were applicable, they had already been covered by the main charge, and the refusal presents no error. The one presented in bill 28 related to the testimony withdrawn from the record and heretofore discussed in connection with bill of exception 24. If the entire testimony of appellant on the former trial had remained in the record, the charge refused by the court might have been pertinent; but, it having been properly withdrawn, it was not incumbent upon the trial judge to give the charge relative thereto.

Bennie Atkinson was asked upon cross-examination, in effect, if he had not told his wife that he had killed deceased. He denied that he had so told her. Appellant called Mrs. Bennie Atkinson as a witness, and it developed that she and Atkinson had married in 1917, but were divorced in June or July, 1920; that at the time of the conversation inquired about they were not married, but he was again going with her, and they were expecting to remarry. They were remarried in January, 1921, and were husband and wife at the time Mrs. Atkinson was called as a witness by appellant, but she was not living with him at that time. She refused to testify, giving as her reason that Atkinson was her husband. The court declined to compel her to give evidence. Appellant excepted, on the ground that at the time of the conversation with Atkinson she was not his wife, and was not living with him at the time of the trial, and thiat it could not be claimed as a confidential communication. If compelled to do so, the witness would have testified that, shortly after the killing of Loper, Atkinson came to her house one time when he was intoxicated, and said he “had killed a man,” but she told him he was drunk or crazy; that he went away; that she saw him again the next morning, when he was sober, and asked him “if he had killed Hoper,” to which he replied, “No; he had not done it, but that he knew the fellow that did.” Upon being asked by her who it was, he said, “Well, I will never tell.” This testimony could have been admissible, if at all, for two purposes only: First, for the purpose of impeaching Bennie Atkinson when he denied having told his wife that he had killed deceased; second, for the purpose of showing either that Bennie Atkinson alone was responsible for the death of deceased, and that appellant was entirely innocent, or that Atkinson was an accomplice to the killing. Can the wife be called to give testimony the effect and purpose of which is to impeach her husband by having her testify to contradictory statements made to her at a prior time, when they were not married? The ease of Roach v. State, 41 Tex. 261, is very much in point. A state’s witness in that case was asked if she had not made certain statements about the case before her marriage to the party who was then h¡er husband. Afterwards the husband was introduced by the defendant to prove the declarations made to him by her before their marriage. The evidence was excluded because a proper predicate had not been laid, but the court in commenting on it used the following language:

“It was also properly excluded for the reason that the witnesses sustained to each other the relation of husband and wife and it made no difference at what time the relation commenced.”

The opinion in Clubb v. State, 14 Tex. App. 192, is not in conflict- with the Roach Case, but expressly affirms the doctrine therein laid down. This doctrine was reaffirmed in Norwood v. State, 80 Tex. Cr. R. 564, 192 S. W. 248. Article 795, C. C. P., provides:

“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.”

If one spouse cannot be called to impeach the other as to a contradictory statement, i.t would seem useless to discuss the further proposition as to whether one might be permitted to testify to facts against the other which might subject him or her to a criminal prosecution. The proposition here under discussion is not in conflict with the rule laid down in Dungan v. State, 39 Tex. Cr. R. 118, 45 S. W. 19; Bluman v. State, 33 Tes. Cr. R. 58, 21 S. W. 1027, 26 S. W. 75, or Hardin v. State, 51 Tex. Cr. R. 559, 103 S. W. 401. The doctrine in those cases is that a wife is a competent witness against a co-defendant where the husband admits his guilt, and goes upon the stand and freely testifies either as a witness for the state, as in the Bluman Case, or as a witness for the defendant, as in the Hardin Case, because in such cases one cannot be said to be testifying against the other. Such is not the case here. The record fails to show that Atkinson had ever been indicted for killing deceased, or that he testified under a.promise of immunity from the state. He at .all times earnestly denied that he was in any manner criminally connected with the killing, either as a principal or an accomplice, and had denied making the statement to his wife indicating that he might be guilty of such offense. To have compelled the wife to testify under such circumstances would, in our opinion, have been violative of article 795, O. O. P., supra, and of every reason of public policy which excludes the wife from testifying against the husband. Green-leaf, on Evidence (15th Ed.) pars. 334, 335; 4 Jones’ Commentaries on Evidence, p. 401; Wharton’s Criminal Evidence, p. 812, par. 396; Pinckard v. State, 62 Tex. Cr. R. 604, 13S S. AV. 601. From the latter case we take the following quotation:

“It does not appear from the record that Tom Pinekard.had ever been indicted or charged with such an offense, except that such appears from the questions propounded by defendant, and the witness Pinekard nor his wife could not be compelled to furnish evidence upon which an independent criminal prosecution might be based.”

If the statement of Mrs. Atkinson charged to have been made by her husband at the time he was intoxicated should be received, and his recantation the next morning while sober be disregarded, it would have furnished evidence or information upon which a prosecution against Atkinson might have been based. For the reasons stated, we are of opinion the court committed no error in declining to compel Mrs. Atkinson to testify.

The record shows a killing committed in an effort to perpetrate robbery. There is no palliation for such an act, and the jury were justified in the verdict inflicting the extreme penalty.

No errors appearing in the record, the judgment must be. affirmed.

On Motion for Rehearing.

MORROW, P. J.

Appellant insists that there was error in excluding the proffered testimony of the wife of the state witness Atkinson. The purpose of the testimony offered was to prove that the witness Atkinson had admitted to his wife before their marriage that he had killed the deceased. Its exclusion was upon the ground that Atkinson’s wife was not available to the state to prove that he had committed the homicide or had taken part therein because such proof might lead to his prosecution or conviction of a crime, and that to admit its proof by the wife would violate the rule rendering her incompetent to prove facts learned from her husband which are in the nature of a confidential communication between the husband and wife. Decisions of this court bearing upon the soundness of the ruling are cited in the original opinion and are listed by Mr. Branch in his annotation of the Texas Penal Code, § 149. In some of these decisions the facts are controlled by our statute, rendering the wife incompetent as a witness against her husband. The general rule deducible from those which are not controlled upon the trial of another person to reveal information received from her husband which would disclose that he had committed a crime; that this rule is subject to the exception that, when the facts are such that he could not be prosecuted for the offense disclosed by his wife, her testimony may be used. Morrill v. State, 5 Tex. App. 448; Hardin v. State, 51 Tex. Cr. R. 559, 103 S. W. 401; Bluman v. State, 33 Tex. Cr. R. 58, 21 S. W. 1027, 26 S. W. 75; Rios v. State, 39 Tex. Cr. R. 675, 47 S. W. 987; Dill v. State, 1 Tex. App. 282; Dungan v. State, 39 Tex. Cr. R. 115, 45 S. W. 19; Spencer v. State, 52 Tex. Cr. R. 292, 106 S. W. 386; Bowmer v. State, 55 Tex. Cr. R. 416, 116 S. W. 798.

These cases we have adverted to in the original opinion, and reached the conclusion there stated that the testimony in question is within the general rule stated, and not Within the exception. The proffered testimony of Atkinson’s wife would connect him with the homicide, the commission of which he denied upon the trial. The record reveals no fact or agreement which would he an impediment to his indictment for this offense. In addition to the cases mentioned, the appellant stresses that of Olubb v. State, 14 Tex. App. 194, the analogy of which we are unable to accept. Samuel Clubb was convicted of an assault upon his father, John Clubb. John Clubb gave testimony against the accused. Julia Clubb, the wife of John Clubb, was held available to the appellant to give testimony in his favor, notwithstanding her version of the facts was not in accord with that of her husband. Her testimony related to no confidential communication, but referred solely to her independent knowledge of the transaction upon which the prosecution is founded. The distinction 'between such a case and the one at bar is noted in the opinion and obviously existed. The court’s ruling apparently is supported by the opinion of the Supreme Court of this state in the case of Roach v. State, 41 Tex. 262. See, also, Bowmer v. State, 55 Tex. Cr. R. 416, 116 S. W. 798; Spencer v. State, 52 Tex. Cr. R. 292, 106 S. W. S86; Dungan v. State, 39 Tex. Cr. R. 115, 45 S. W. 19; Dill v. State, 1 Tex. App. 282. The ruling is not in conflict with the cases of Rios v. State, 39 Tex. Cr. R. 675, 47 S. W. 987; Bluman v. State, 33 Tex. Cr. R. 58, 21 S. W. 1027, 26 S. W. 75; Hardin v. State, 51 Tex. Cr. R. 559, 103 S. W. 401; Morrill v. State, 5 Tex. App. 448. What we have said is but a repetition of the statements contained in the original opinion.

In view of the nature -of the case, and the penalty attached, we have re-examined the record in the light of the motion and reviewed the authorities to which we have been referred, and have been led to the conclusion that the point made was properly disposed of in the original opinion, and that no other matters pointed out by .the appellant or revealed by the record would justify this court in disturbing the verdict rendered and the judgment entered by the trial court.

The motion is overruled. 
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