
    BLAKE v. STATE.
    (No. 4420.)
    (Court of Criminal Appeals of Texas.
    March 28, 1917.)
    1. Criminal Law <&wkey;1099(l) — Appeal — Statement of Facts — Approval.
    The statement of facts approved by a judge other than the one who tried the case cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866, 2868, 2874.]
    2. Criminal Law <&wkey;531(l) — Evidence—Confession.
    Proper predicate is necessary for admission of confession of defendant while under arrest.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1212, 1213.]
    3. Criminal Law <&wkey;528 — Evidence—Confession of Codefendant.
    Proper predicate being laid, not only the confession of defendant while under arrest, but that of his codefendant practically the same, and made at the same time and under the same circumstances and in his presence, is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ■§§ 1002-1010.]
    4. Witnesses <&wkey;48(3) — Competency—'“Convict.”
    Regarding competency as a witness, one, though pleading guilty, is not a “convict” till his case has finally been determined against him either by affirmance or by his acceptance of the sentence, and so not within the two days for filing motion for new trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 112.
    For other definitions, see Words and Phrases, First and Second Series, Convict.]
    5. Witnesses <&wkey;62 — Wife of Defendant-Cross-examination.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 795, making a wife an incompetent witness against her husband, the state may not on cross-examination of her develop new matter.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 177.]
    Appeal from District Court, Gregg County; John M. Tipps, Judge.
    Wash Blake was convicted, and appeals.
    Reversed and remanded.
    W. C. Shoults, of Longview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, his punishment being assessed at two years’ confinement in the penitentiary.

The-statement of facts cannot be considered. The record shows the case was tried by Judge John M. Tipps, and the statement of facts was approved by Judge Daniel Walker. This question has been decided in the cases of Richardson v. State, 71 Tex. Cr. R. 111, 158 S. W. 517; Porter v. State, 72 Tex. Cr. R. 71, 160 S. W. 1194; and Allen v. State, 72 Tex. Cr. R. 277, 162 S. W. 868.

Ax>pellant reserved a bill of exceptions to the action of the court admitting the confession of appellant while under arrest and unwarned. The bill is rather indefinite as to the real conditions and environments attending the introduction of the statements of the defendant as well as those of his codefendant, Johnson. They were together under arrest, and each one seems to have made practically the same character of confession. It seems from the bill that the court admitted the testimony on the theory that fruits of the crime, or instruments by which it was committed, were •found by reason of the confession, though this is not clear. Upon another trial this testimony will not be admitted unless a proper predicate is laid. If the rule of the statute is not complied with upon another trial, the bill should be explicit. If proper predicate is laid, we are of opinion the statements of the eodefendant could also be introduced, as these conversations occurred between the sheriff and the two parties, each having made practically the same statement-in the presence of each other at same time.

There is another bill of exceptions to the ruling of the court admitting the testimony of Louis Johnson. The objection seems to be based upon the theory that Johnson was a convict, and therefore not a competent witness. The qualification of the bill shows that Johnson had pleaded guilty, and that two days had not elapsed in which he could file motion for a new trial, and therefore he was permitted to testify. Under the statute and decisions construing it since Areia v. State, 26 Tex. App. 193, 9 S. W. 685, the judge’s ruling was correct. A party is not a convict, although he may plead guilty, until his case has finally been determined against him either by affirmance or by his acceptance of the sentence.

A bill of exceptions was also reserved to the admission of testimony of the wife of appellant. This bill recites that after the state had introduced its testimony and rested, and after the defendant had introduced his testimony and rested, having used his wife, Agnes Blake, as a witness in his behalf on the issue of alibi, and after the defendant had testified himself, and in his testimony had stated that Bob Davis was with him on the night of the burglary, attended some kind of a meeting with him at a hall in Longview, ‘and went home with him about 11 o’clock at night, being the night of the burglary, and after he had testified that Bob Davis was sleeping in a room at his said home, and was aroused by the codefend-ant, Johnson, and was present when the defendant was called by Johnson and notified by him where the meat, lard, soap, -and other property was which had been stolen from the burglarized house, and after defendant had testified that said Bob Davis went with him to the place where the stolen property was, and to facts that excluded appellant’s presence at the burglarized house, or his knowledge of the burglary until his attention was called to it by Johnson after the completion of the burglary, the state then called appellant’s wife and made her a witness for the state, and over appellant’s objection interrogated her fully about her knowledge of the movements of Bob Davis both on the day and night- of the burglary and before and after that time, and had said witness testify, in substance, that she did not see Boh Davis on said night; that Bob Davis was-not at the home of herself and defendant on said night; that Louis Johnson did not arouse or awake Bob Davis at defendant’s home on the said night; that Bob Davis had never roomed or boarded at defendant’s home, as testified by defendant, but, as she recollected," had left or moved away from Longview before said burglary was committed. To all of which testimony and proceedings defendant reserved his exception, setting out various grounds. The court thus qualifies this bill:

“The state had closed and defendant had closed in main, and the state requested permission to place Agnes Blake on the stand to ask her a question the state overlooked and did not ask on cross-examination while she was on the stand. The request was granted, the question asked, and the answer given.”

It will be observed the qualification of the bill does not throw any light on the 'subject nor impair the strength of the bill as prepared by the defendant and signed and approved by the judge. It is statutory and the well-settled rule that the -wife cannot be used as a witness against her husband, except in that class of cases where one may inflict violence upon the other; and it will also be observed that the rule is well settled that the wife cannot be used by the state to develop new matter, for, if that occurs, she then becomes a state’s witness. The wife on her examination had not developed anything with reference to Bob Davis, and when the state recalled her and questioned her with reference to Bob Davis at her home on the occasion inquired about, it was new matter and could have been used for no other purpose than to contradict her husband, and that upon subjects about which she had not been examined by her husband. These cases are found collated in Mr. Branch’s Criminal Law, §§ 851 and 852. There are quite a number of decisions there to be found. See, also, Vernon’s Annotated Criminal Procedure at page 727 for the statute and annotations.

The judgment will be reversed, and the cause remanded. 
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