
    COWSER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    Rehearing Denied June 4, 1913.)
    1. Names (§ 16) — Idem Sonans — Amer—Armor.
    The names “Amer” and “Armor” are idem sonans. Hence in ‘a prosecution for incest, in which the defense was a former marriage with Amer C., a decree of divorce given to defendant from Armor O. -is admissible in evidence under proper instructions of the court as to burden of proof on the state to show the identity of the parties, etc.
    [Ed. Note. — For other cases, see Names, Cent. Dig. §§ 4, 12-14; Dec. Dig. § 16.]
    2. Witnesses (§ 193) — Husband and Wife —“Confidential Communications.”
    In a prosecution for crime committed with defendant’s stepdaughter, defendant’s confession in the presence of his wife and daughter is not a “confidential communication” within Code Cr. Proc. 1911, art. 794.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 740, 741; Dec. Dig. § 193. For other definitions, see Words and Phrases, vol. 2, pp. 1421, 1422; vol. 8, p. 7011.]
    3. Criminal Daw (§ 369) — Evidence—Other Offenses.
    In a prosecution for incest, prosecutrix may testify as to other acts of intercourse man those charged.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    4. Criminal Law (§ 1169) — Appeal—Harmless Error — Evidence.
    In a prosecution for incest, that the prosecuting witness testified to other acts of intercourse, even if error, was harmless error, where defendant brought out the same facts on cross-examination of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent..Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    5. Criminal Law (§ 1169) — Erroneous Admission of Evidence — Action of Court.
    Erroneous admission of evidence is not error, where witness answered before objection could be made and the court on objection promptly struck out the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    6. Criminal Law (§ 598) — Continuance — Absent Witness — Dilisence.
    A continuance for the absence of a witness on a third trial is properly denied for lack of diligence; where on the first trial the witness had testified, and on the second trial, resulting in a hung jury, motion for continuance to procure this witness was denied.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1335-1341; 598.] see Criminal Dec. Dig. §
    7. Criminal Law (§ 595) — Continuance — Absent Witness.
    In a prosecution for incest with defendant’s stepdaughter, the testimony of a witness that he had seen a young woman and man in a compromising position at defendant’s house three months after the crime charged in the indictment is not of sufficient materiality to render it error to deny a continuance for the absenpe of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 595.]
    Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.
    W. H. Cowser was convicted of incest, and he appeals.
    Affirmed.
    J. E. Shropshire, of Brads’-, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rop’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted of incest with a penalty of four years in the penitentiary.

As stated by appellant’s able attorney, there are but few questions to be decided in this case. The evidence of appellant’s guilt is clearly sufficient to sustain the verdict.

After the state, had introduced its proof clearly malting out the case against appellant, in order to defeat the state’s case and show that he was not legally married to the mother of the complaining witness and thereby show that she, in law, was not his stepdaughter, he introduced a properly certified copy of a marriage license from New Mexico with the return thereon showing that he was lawfully married on March 3, 1901, to Miss Amer Harvey, and rested. The state, in order to meet this, introduced appellant’s 15 year old son, who testified that his father called the name of that wife “Armor.” The state then introduced, over his objections a properly certified copy of a divorce decree from the district court of Hopkins county, showing that on August 27, 1907, appellant procured a divorce from Armor Cowser. His son also testified that his father moved from New Mexico to Hopkins county, and was living in Hopkins county at or about the time this divorce was obtained by him. He made no objection whatever to the testimony of his son. The court, in approving his bill to the introduction of said divorce decree, qualified it with this explanation: “The witness testified that he knew his father’s wife as Armor and that his father called her Armor; that defendant moved to Hopkins county, Tex., and lived there; and that his wife did not go to Hopkins county with defendant. The divorce was granted in Hopkins county, Tex. The court admitted the decree after the witness had testified as above stated, and iu the charge submitted the question of the identity of the parties named in the decree of divorce with defendant and his wife, Amer or Armor, See charge of court.” The court charged that: “The essential ingredients of the crime with which' the defendant stands charged are: First, the legal marriage of defendant to Mrs. A. C. Turn (Mrs. Turn was the mother of the prosecutrix by a former marriage). Second, that defendant while so married to Mrs. A. 0. Oowser (formerly Mrs. Turn) had sexual intercourse with Agnes Turn. Third, that Agnes Turn was the daughter of Mrs. W. H. Cowser by_ a former marriage. Fourth, that at the time defendant married Mrs. A. C. Turn, if he married her, her husband, A. O. Turn, was dead. Fifth, that at the time defendant married Mrs. A. C. Turn, if he married her, the marriage of defendant to Florence Dutton had been dissolved by the death of said Florence Dutton. Sixth, that at the time defendant married Mrs. A. G. Turn, if at all, the former marriage of defendant to Amer Harvey had terminated by divorce. And the burden of proof is on the state to prove beyond a reasonable doubt each and all the foregoing ingredients of the crime; and, if it has not been done so, it will be your duty to acquit defendant, or if you have a reasonable doubt whether or not the state has proven each and all the ingredients of said alleged crime, you will acquit the defendant.” Then, in addition, further charged as follows : “The state has introduced in evidence a certified copy of a judgment rendered by the district court of Hopkins county, Tex., in a ease entitled W. H. Oowser v. Armor Oowser. Unless you believe from the evidence in this case, beyond a reasonable doubt, that Amer Oowser, the woman to whom the defendant was married in New Mexico, was commonly called Armor Oowser, and that the Armor Cowser mentioned in said judgment was one and the same person as Amer Cowser, and that the W. H. Cowser mentioned in said judgment was one and the same person as the defendant, you will acquit the defendant.” Still, in addition, he charged that the burden of proof was on the state, and the presumption of innocence until guilt is established by legal evidence beyond a reasonable doubt, and if they had a reasonable doubt as to his guilt to acquit him. The court committed no error in permitting the introduction of said divorce decree under the evidence and the charge of the court. The names “Amer” and “Armor” are idem sonans. Feeny v. State, 62 Tex. Cr. R. 585, 138 S. W. 135; Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696; Smith v. State, 63 Tex. Cr. R. 185, 140 S. W. 1096; American Ins. Co. v. Rodriguez (Civ. App.) 145 S. W. 654; and authorities cited in said cases.

The act of sexual intfercourse by appellant with his said stepdaughter was alleged to have been committed on or about April 30, 1910, which was clearly proved. By this act of intercourse his stepdaughter became pregnant and she so advised him. He consulted a doctor soon afterwards, telling him that said girl had suppressed menses and consulted the doctor thereabout. He after-wards gave her some medicine to take, which she took under his direction for the purpose of bringing on her menses, or bringing on an abortion; but it had no effect. After the condition of the girl became such as to be noticed by ■ the family, they became uneasy about it and wanted to call in a local physician to examine her and determine what was the matter with her. Appellant vigorously opposed this and threatened personal violence to them or any physician who would there be called in for that purpose. After further consultation, with the family and appellant all present, it was determined to take the girl from Brady in McCulloch county to Ft. Worth and have her examined by a specialist to ascertain what was the trouble with her. Appellant wanted to take the girl himself alone. Her mother demurred to this and insisted upon going with them. He vigorously opposed this. However, he and the girl and her mother, together, proceeded to Ft. Worth. Upon reaching there the three went to a hotel, registered, got a room, and went to the room. He wanted to delay the consultation with a physician. The mother insisted that it should be had at once. After seeing that he could not prevent this, he then confessed to the mother and daughter, all three being present, that he was the author of the girl’s condition and that she was pregnant by him. Soon after this, his wife, the mother of the girl, procured a divorce from him. The court, over his objections, permitted the mother and girl both to testify to what he said to them in his confession in the hotel; appellant contending that the former wife was not a competent witness to testify to what he had confessed and told them at the time. The court, in approving his bill to the admission of this evidence by his former wife, qualified it as follows: “The court ruled that any conversation between defendant and his wife in the presence and hearing of a third party was admissible. The court did not rule that it would be admissible if a third party heard some of it. At the time this witness testified in this ease, the defendant and his wife, A. O. Cowser, had been legally divorced, and all the conversation admitted was in the presence and hearing of a third party or parties.” The court’s action in admitting this testimony was proper. Richards v. State, 55 Tex. Cr. R. 278, 116 S. W. 587; Cole v. State, 51 Tex. Cr. R. 89, 101 S. W. 218; Gant v. State, 55 Tex. Cr. R. 290, 116 S. W. 801.

This court, through Presiding Judge Davidson, in the Richards Case, supra, held: “Article 794 (774) of the Code of Criminal Procedure interdicts the admission of confidential communications between the husband and -wife, during or after the dissolution of the marriage. These statements were not confidential communications. They were made in the presence of others in a general running conversation, and were not of a confidential nature. This question, almost identically stated, was ruled favorably to appellant’s contention in Cole v. State, 51 Tex. Cr. R. 89 [101 S. W. 218]. The authorities are practically harmonious to the effect that confidential communications between husband and wife are not admissible^ either during coverture or after the dissolution of the marriage relation; but the authorities are practically harmonious to the effect that communications or statements made between the husband and wife, in the presence of others, are not privileged. Com. v. Griffin, 110 Mass. 181; State v. Hoyt, 47 Conn. 518 [36 Am. Rep. 89]. Statements of one spouse to the other in the presence of third persons may be proved by such persons. Rex v. Simons, 6 Car. & P. 540; Gannon v. People, 127 Ill. 507 [21 N. E. 525, 11 Am. St. Rep. 147]; Shuman v. Supreme Lodge, 110 Iowa, 480 [81 N. W. 717]; Jacquith v. Davidson, 21 Kan. 341; Bank v. Hutchinson, 62 Kan. 9 [61 Pac. 443]; State v. Gray, 55 Kan. 135 [39 Pac. 1050]; Fay v. Guynon, 131 Mass. 31; Long v. Martin, 152 Mo. 668, 54 S. W. 473; People v. Hayes, 140 N. Y. 484 [35 N. E. 951], 23 L. R. A. 830 [37 Am. St. Rep. 572]; Toole v. Toole, 109 N. C. 615 [14 S. E. 57]; Allison v. Barrow, 3 Cold. [Tenn.] 414 [91 Am. Dec. 291]; Queener v. Morrow, 1 Cold. [Tenn.] 123. These authorities support the decision of Cole v. State, supra. The same rule is laid down by Mr. Greenleaf in the first volume of his valuable work on Evidence, under sections 337, 338, and numerous authorities cited in the notes under these sections.”

In 40 Cyc. p. 2359, the law is stated as follows: “A communication between husband and wife in the presence and hearing of a third person is not so confidential as to be a privileged communication, unless such third person is a young child, or is otherwise totally incapable of comprehending what is being said, and either the husband or wife or the third person who was present may testify in regard thereto. A fortiori the privilege does not extend to communications by one spouse to a third person in the presence of the other spouse, or to a conversation participated in by husband and wife and a third person. Even though a conversation between husband and wife was intended to be confidential, a third person who overheard it may testify as to what was said” — citing authorities from several states, among them, from this state. The same doctrine is laid down in 10 Ene. of Ev. p. 194 (2). In fact, we think this doctrine is unquestionably well settled.

By another bill appellant complains of the action of the district attorney in asking the prosecutrix this question: “Q. How many times did he have intercourse with you, Miss Agnes?” To which she answered: “A good many times.” That the question was asked and the witness answered before he could object thereto. That he at once thereafter objected to the question and answer and to the conduct of the district attorney in asking this question and' getting this evidence before the jury. The courj; promptly instructed the jury to disregard both the said question propounded and answer. The court, in approving the bill, qualified and explained it as follows: “Defendant’s counsel on cross-examination of Agnes Turn propounded to her and elicited from her the following answers:. Q. When he (defendant) took you out of bed and did that way (had intercourse with her), you did not wake your sister up? A. No, sir; he wouldn’t let me. Q. Well, you did not wake your mother? A. No, sir. Q. Then it went on for a month or two after-wards and still you did not tell your sister or your mother; in fact, you never did tell your mother about it, did you, until after this prosecution, did you? A. No, sir. On re-examination- the district attorney propounded the question objected to with result stated in the bill. The attorney for defendant having proved that intercourse between these parties went on for a month or two, if there was error in the action of the district attorney, it was, in view of the foregoing, harmless.” There is no error presented by this. First, the testimony was admissible. Burnett v. State, 32 Tex. Cr. R. 87, 22 S. W. 47; Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, and authorities therein cited. Second, appellant himself, having, as shown by the qualification of the judge, proved the same thing by the witness, he cannot cpmplain, even if the question by the district attorney and answer thereto had been inadmissible. Third, and even if it had been inadmissible, the court, having promptly sustained the objection thereto and instructed the jury not to consider it, no reversible error would be shown.

The case had formerly been tried at a previous term. It is not certain whether a verdict was then returned against appellant, or a mistrial, because of a hung jury. Appellant’s witness Bud Sessom was present and testified at that time. At a subsequent term the case was again called for trial, the state announced ready, and the appellant made an application for a continuance on account of the absence of his said witness. The court overruled his application' that time and forced him to trial. That trial resulted in a hung jury. At the September term, 1912, the case was again called for trial, and appellant then filed his second application for continuance on account of the absence of said witness. That trial resulted in this conviction. The application for a continuance, we think, was properly overruled, because it did not show diligence by the appellant in attempting to secure the attendance of his said witness. Giles v. State, 148 S. W. 317, and authorities there cited. The .court, in approving appellant’s bill to the overruling of this application for a continuance, qualified and explained it as follows: ‘‘This witness on a former trial of this case before this court testified, and with the knowledge of what he had formerly testified, the motion was ruled upon. The testimony of the witness on the former trial was substantially as follows: Along in the latter part of July or August, I went to the defendant’s house east of town, selling some pears. There is a little frame house out to the east of the dwelling house, and when 1 drove up and hollered some one opened the door of this little house, and there was a couple in there. I saw a lady lying on the pallet and a young man looked like he was getting up from the pallet. The best I could tell, the young lady’s clothes were up. I didn’t know either one of these parties and never did know who they were. After I first saw them, they went to the back of the room, and I turned to get some pears out of the wagon, and when I raised up there were several people out at the wagon, but I could-n’t say whether this couple was out there or not.” Even if appellant had used sufficient diligence to get this witness, his testimony, as shown in the qualification by the judge, would not have been of such materiality as to authorize or justify this court to reverse the case. The offense was charged to have been committed on or about April 30, 1910. Even if this testimony would have tended to show that the prosecutrix was seen in a compromising position with another in the latter part of July, or August, following, or even that she had had intercourse with another at that time, it would have been no defense to appellant’s incestuous intercourse with the girl three or four months prior thereto.

No reversible error whatever is shown.

The judgment will be affirmed.  