
    HAMILTON v. STATE.
    
    (Court of Criminal Appeals of Texas.
    Jan. 15, 1913.)
    1. “Cbiminal Law (§ 641)—Rights of Accused-Right of Counsel.
    Defendant and Ms stepdaughter were arrested for incest, and employed the same counsel. Defendant was released on bail, while the girl, .after her bail bond was signed, was held to testify before the grand jury, and was promised' immunity if she testified against defendant and threatened with the penitentiary if she did not, and was placed in the death cell of the jail and brought into court twice, before she would testify against him, which she said she did because she wanted to get out of jail. Counsel was denied a conference with her, either as a client or as a witness, as to defendant’s defense, and was denied permission to interrogate her as to the reasons for her testimony against defendant. The Constitution guarantees every accused person the right to confer with counsel, and Pen. Code 1911, art. 1046 (White’s Ann. Pen. Code 1901, art. 625), provides a punishment for any one having the custody of a prisoner who shall willfully; prevent him. from consulting or communicating with counsel. Meld, that a party desiring counsel need not be preparing a defense against some accusation after an indictment or arrest that the statute comprehended every situation in which an accused person, under arrest or not, desired to consult with counsel, and that the fact that her testimony had 'been coerced and put in over objection by counsel for defendant was such a clear violation of his rights as to require a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1496-1505; Dec. Dig. § 641.]
    2. Cbiminal Law (§§ 741,1742) — Province of
    Juey — Credibility of Witnesses.
    The credibility of witnesses is for the jury, and an issue which has any evidence in its support may not be withdrawn from the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 113S, 1221,1705, 1713, 1716, 1717, 1719-1721, 1727, 1728; D'ec. Dig. §§ 741, 742.]
    3. Criminal Law (§ 814) — Instructions— Relation of Parties.
    In a trial for incest with a stepdaughter, where there was evidence that defendant had been married previously, and thought that such wife, from whom he had never been divorced, was living, though he had not heard from' her in eight or ten years, a requested charge that, if defendant had a former wife, he could not be convicted, unless she was dead or legally divorced prior to his marriage with the mother of the codefendant, was applicable to the issue raised by the evidence, and its refusal was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    4. Incest (§ 5) — Elements of Offense — Relation of Parties.
    Unless the mother of the girl with whom incest was charged to have been committed was the lawful wife of defendant, their intercourse would not constitute the crime.
    [Ed. Note. — Por other cases, see Incest, Cent Dig. §§ 3, 4; Dec. Dig. § 5.*]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    E. B. Hamilton was convicted of incest, and he appeals.
    Reversed and remanded.
    J. G. Matthews and Neyland & Neyland, all of Greenville, for appellant. O. A. Swee-ton and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
       Rehearing denied February 12, 1913.
    
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant and Annie Wood were charged with incest, and appellant given two years and a half in the peni-teniary.

The case is peculiar in several respects. Appellant was about 63 or 64 years of age, living in the country about four miles from the city of Greenville, in Hunt county. He employed the mother of Annie Wood as a sort of housekeeper, and she and Annie Wood and a son and another daughter, a married woman, or widow, took up their abode at the residence of appellant. After the mother of Annie Wood had been at the place awhile, she stated to appellant one day that living in the house, with him and occupying it as she and her children were-might cause comment, and it would be better that they should marry. After talking-over the matter an amicable arrangement, was reached, and they went to town and. were married. They went that night to a-, hotel in Greenville, and about 11 o’clock retired to their room. Appellant’s newly married wife commented on the fact that there-was but one bed in the room. He suggested in reply that it was not necessary that there-be two beds for a man and his wife, that one was sufficient. She then informed him she had a statement to make to him, which she proceeded to do, in regard to her physical condition, and, to sustain her statement, exhibited her person so as to discover to appellant the fact that she was badly diseased from her waist practically down to her feet, being covered with sores. This outraged appellant very much, and therefore they did not assume the relation of husband and wife-so far as having intercourse was concerned. He sent her away to Corpus Christi for the-purpose of curihg her, if it could be accomplished. Annie Wood remained in the house after her mother had gone as housekeeper, and it was during this time or period that the incestuous intercourse is alleged to have-occurred. Appellant and Annie Wood were-arrested on the charge of adultery, and later-the accusation was changed to incest. They employed J. G. Matthews, Esq., an attorney of the Greenville bar, to defend them, and. also to bring civil suits for damages against parties interested in the prosecution. They were incarcerated in jail, bond was fixed at 81,500 in the incest case, and Mr. Matthews prepared a bond for each in that amount. Appellant readily gave bond. Mr. Matthews-secured signatures for bond of Annie Wood,, and carried it to the jail where she was in custody with a view of having her sign it. The offijcer refused to let Mr. Matthews see-his client, but, as Mr. Matthews says, “kindly” agreed to take the bond, and have Annie sign it. She signed it. The officer declined, however, to turn her out after giving-the bond, on the ground that the grand jury was going to indict her in another case. It. seems they had not at that time done so. The evidence indicates that, in fact, they did subsequently indict her in another case of incest with the defendant. Mr. Matthews-undertook to see Annie Wood and confer with her, but the officer declined to let him see or talk with her. Mr. Matthews then filed a motion to compel the sheriff to allow him access to his client, Annie Wood, setting, out the fact, first, that Annie Wood had been charged by some character of affidavit filed about the 13th of October, 1911, and bond furnished her by the sheriff for her to sign, and. that on the 13th day of October, 1911, her said attorney, J. G. Matthews, went to the jail to get her signature to said bond, but the jailer refused him admittance, stating that he had orders from the grand jury not to allow any one to talk to her; that he was refused admittance to the place where she was confined; that about 10 or 12 days ago the grand jury presented an indictment •charging her with incest, and on the 18th or 19th of the same month Mr. Matthews carried her bond to the jail to get her signature, “and the sheriff or jailer in charge again ‘kindly’ consented to go and get the ■signature of said Annie Wood to said bond, hut refused to allow her said attorney (Matthews) to see her, but that said attorney without antagonizing the said sheriff’s force or the jailer took the bond, and obtained signatures of two good and solvent sureties, and presented the same to the sheriff, and the said sheriff held said bond for a considerable length of time, but refused to liberate the defendant, and waited patiently for the grand jury to present another bill in a different case, and then approved and filed the bond among the papers of the ease, said bond ■being fixed by the court at $1,500; that the bonds fixed by this court against the said Annie Wood charged with the offense of incest in the two cases amount to the sum of $3,000, which she will not be able to make, and the only way that this attorney can do to have the assistance of the said Annie Wood, defendant, in shaping up her defense is for him to have access to his client on the inside of the jail or have her brought to some place of safety where she can have the privilege of consulting with her attorney in shaping up process, and preparing her defense.” This motion wound up with a prayer that the sheriff be directed to bring his client to his office, or some other office with directions to the sheriff that she be permitted to have a private talk with her attorney without the hearing of any one except herself and her attorney. This motion was presented to Hon. T. D. Montrose, who was presiding over the court in the absence of the regular judge, Hon. R. L. Porter, and that said District Judge Montrose still presiding on the 24th of October, 1911, had Annie Wood brought into open court, the said Annie Wood not being brought until after the motion had been read. The court then placed the said Annie Wood on the witness stand, and stated to her attorney that he might proceed, and the said Annie Wood, being interrogated, stated that she did not have an attorney, that she would like to have one, and that she had asked the jailer to go and see J. G. Matthews as he had been representing her before she was put in jail, and that, if he was not going to represent her, for him to see B. Q. Evans,, but that she never received any report from the message, and the district attorney then asked her if she had testified before the grand jury under an agreement that she would not be prosecuted, and the defendant stated that she had told the truth, and the district attorney then stated that they were not going to prosecute defendant, but were holding her as a witness, and counsel'for E. B. Hamilton then asked the court that if she was a witness against his client, her eodefendant, he be permitted to have a private talk in order to shape up the defense of his client, and this the court refused, stating that he might as well turn her over to Mr. Hamilton (this defendant), and said attorney then and there objected, etc. This bill is signed by the judge.

Another bill in this connection shows that Annie Wood was brought into court by the sheriff on Wednesday evening after the witness had been sent back to jail on Monday and also Tuesday, and the jury held from the time they were impaneled, Monday morning, until Wednesday afternoon, waiting for the witness to testify as to whether or not the defendant had had intercourse with her. The defendant objected to the testimony of said witness upon the following grounds: First, that she stands charged by indictment with the same offense as the co defendant with this defendant on trial; second, because said witness has twice previous to this been put on the stand at the instance of the state, and failed to testify as to the matters sought to be proved by her as a witness for the state, and remanded to the custody of the sheriff and compelled to remain in the sheriff’s custody under the order of the court, since the beginning of this case; third, that the conduct’ of the court in remanding said witness to the sheriff and keeping the jury in the hands of the constable and officers is of such a character as is likely to intimidate the witness and cause her to give testimony against herself and against the defendant. The court overruled the objection, defendant excepted, and the witness then proceeded to answer in response to the questions ; the questions and answers being here given : “Q. At the time that you and your stepfather lived together there out there (Mr. Hamilton), did he have carnal intercourse with you? A. Witness nodded her head, signifying, ‘Yes.’ Q. You answer that he did? A. Yes, sir. Q. When was the last time that he had intercourse with you? A. About the 10th of September. Q. This last September? A. Yes, sir.” Cross-examined: “I lived at Mr. Hamilton’s about three months. Q. You said he had intercourse with you, * * * carnal knowledge of you? Do you know what intercourse means? A. Witness shook her head signifying, ‘No.’ Q. Did he deal with you like he would, he would if he had been your husband? A. I done just as he would if a wife or unmarried people. Q. Did he ever get on top of you? A. Witness shook her head, signifying, ‘No.’ Q. Never did — did he ever get between your legs? A. That is the way they have got it down. Q. You say that is the way they have got it down; but I want to know the truth. A. He done it sideways. He stuck his privates in mine only twice. I have been in jail there for the last three weeks, by myself most of the time. I have never talked with anybody about this case, and was never allowed to talk with anybody about it. Q. Did you ever try to get anybody to go and get you a lawyer? A. Yes, sir.” Witness proceeds: “I have been confined there about 25 or 26 days. I was out there at home when Mr. Hamilton had intercourse with me. Nobody was present. I have been told what would become of me if I did not testify to that fact — that I would be sent to jail and the penitentiary. Q. Is that the reason you are swearing it? (Witness nodded her head.) I have been out here twice to swear that fact, and have refused both times, and they have sent me back both times to jail, and now I say they told me they would send me to jail and the penitentiary if I did not swear it, and that is the reason I am. swearing it. I have been out of the jail two or three hours. The new man, the' jailer, has had charge of me. I don’t remember who he is. He has had me strictly under his guard. I have not been permitted to talk to Mr. Hamilton’s lawyer or any other lawyer. Q. Has J. G. Matthews been your lawyer; and was he your lawyer when, you were put in jail? Mr. Sweeton: We object, your honor. Judge Porter: Sustain the objection. Judge Matthews: We except. Witness: I have persistently refused to testify to that fact clear up until now, and they told me they would put me in jail and send me to the penitentiary, if I did ’not do it. A grand juror told me that. They had me there this morning in this case. They did not tell me what anybody else had sworn. Q. Did they tell you that Dr. Smith claimed that you had been entered by somebody else? A. Yes, sir. Q. The grand jury represented that fact to you?” Witness proceeds: “I have been before the grand jury before on this case, and they sent out and got me again on this same case, and claimed to me that they would send me to the penitentiary and put me in jail if I did not tell this thing about Mr. Hamilton. They told me to come up and sign something. I don’t .remember what I signed. They read it over to me, but I did not read it. I don’t remember everything they read. I have been told by a juryman that, if I did not stick to that written statement, I would be sent to the penitentiary. I don’t remember seeing that written statement to-day when I was in the grand jury room. I don't remember it. They told me that, if I did not stick to that written statement, I would be sent to the penitentiary. Q. That is the reason you are testifying that way now? A. Witness nodded her head, signifying, ‘Yes.’ Q. You stated yesterday when you went out that you would not send an innocent man to jail or the penitentiary; that you would go back there and stay first. What has caused you to change your mind on that. A. Because they threatened to send me. I am 33 years old. I first saw Mr. Hamilton the 14th day of May. That was about two weeks after he married my mother. At the time he married my mother, I was living at the lake in Paris. I came here to Mr. Hamilton’s because my mother and my brother sent for me to come. I had never seen Mr. Hamilton until the 14th of May. I lived there then with my mother and brother and Mr. Hamilton. I do not know how my mother came to leave me there. I knew she was leaving Mr. Hamilton when she went oft to stay, and never come back. She told me to stay there. I knew where she was going at the time. She was going to Corpus Christi, because her health was bad. At the time my mother married Mr. Hamilton and at the time she went to Corpus Christi, she had nervous trouble, and her feet were sore from her knees down — almost solid sores from her knees down. Q. Miss Annie, since you have been in jail, how have you been fed? (Court sustains some objections.) Q. What was the treatment brought to bear on you last night in jail? Did any one talk to you to have you change your testimony? A. Two of them came down to the jail one night this week — two of the jurymen. They tried to get me to go ahead and plead guilty — tell it all. They were two of the same men I have been seeing in yonder1 [referring to the grand jury room]. They said they would try me. They promised me they would turn me loose, if I would make this change. I am swearing for my liberty now, swearing to get out of jail. That is the object. Nobody, except those two grand jurors, has been there to the jail and talked with me on the inside about my case that has been this week. Q. Has there been any torture applied? Anything of that sort, only you just fastened up in the jail? A. Yes, sir. Q. What was done, Miss Annie? A. Changed me over on the other side last night. They put me over on the north side of the death cell. It was in the death cell they put me. It was not very dark in there. I could see the trapdoor just in the hallway. They put me in the death cell to keep me from talking to anybody, I suppose. A juryman told me it was the death cell, but he was not there when I was changed. They came after I was changed. I had done went to bed. They called me up, and I went down stairs. They did not see me in that room. They called for me, and I was taken downstairs to talk to two of the jurymen. They gave me to understand that, if I did not testify this against Mr. Hamilton, I would be put back in jail and sent to the penitentiary. I was required to testify on that account — the reason I am doing It to-day. Last night I would make the change in my testimony. That grand jury brought me back all the same. They put me back in the death cell. The traps is right out in the hall — stairway. I know what it was, because one of the prisoners told me. That was not the first night that I was ever put in the death cell. I was put in there when I first came, but they had changed me back to a better place, but last night they put me back right at the same old place, and gave me to understand that, ■unless I gave this testimony against Mr. Hamilton, I would be sent to the penitentiary.” And the court having overruled the objections made by the defendant’s counsel, as above stated, and the witness having given the above testimony, the defendant at the time excepted to the action of the court, etc. Judge Porter qualifies this with the following explanation: “This witness, Annie Wood, first testified in regard to defendant’s illicit connection with her before the grand jury after having been promised immunity from prosecution herself. Prom the time she was before the grand jury until the date of trial she was held in jail on a charge of incest. However, the state agreed with her to use her as a witness in the Hamilton ease and to dismiss her cases. While she was in jail and before the trial the defendant wrote her notes in which he advised her ‘to stand firm and tell nothing.’ The evidence further showed that on Sunday night before the trial on Monday the defendant secured lodging near the jail, and hollered to this witness on that occasion, and advised her to ‘stand firm.’ Knowing these facts, when the witness refused to testify, I privately ordered the sheriff to hold the witness in jail until she indicated a willingness to testify. When she did testify and the trial was over, she was released from jail.”

Another bill recites these matters again and another motion made by J. G. Matthews, reiterating these matters at some length, and more explicitly, in which he sets up the relation of attorney and client, and the refusal of the court to permit him to talk with her, either as his client or as a witness in the case, and reiterates also the fact that she had been placed in jail, and all of the previously mentioned threats are again gone over. This bill also recites, and the record shows conclusively, both by testimony and by bill of exception, in addition to what has been stated, that the trial began Monday morning; that Annie Wood was brought out and refused to testify in the case; that she was sent to jail and put in charge of an officer, and the court went on with other business; that Tuesday morning she was again brought out, and again refused to testify against the defendant. She was again put back in jail, and some time during Wednesday she was again brought out and testified, giving as a reason for testifying at the time that she had been visited in jail on more than one occasion and threatened with incarceration in the penitentiary if she refused to testify against the defendant and adhere to some statement she had made before the grand jury. What that statement was, was not and is not disclosed. These bills show that every time the attorney for appellant undertook to investigate what she said in the grand jury room the court would sustain an objection on the ground that it was uncovering the secrets of the grand jury. The testimony that has been referred to herein is perhaps sufficient, without going further into the detail, and showing the minutiae of these transactions and what occurred.

The conclusion from these recitations of the record seems to be beyond cavil that Mr. Matthews was the attorney of this woman; that he had been employed by her, and this defendant as well, when they were first arrested and put in jail; that he prepared bond for them, and undertook to prepare the defense; that she had sent for him and stated that, if he would not continue representing her in the case, to secure the services of Hon. B. Q. Evans, also an attorney at the Greenville bar. This message was not delivered to either attorney by the jailer or deputy sheriff. The court’s idea seems to have been that because she had testified before the grand jury and the district attorney had agreed that he would not prosecute her if she testified and made a case against appellant she had deprived herself of the right of an attorney. How such a conclusion as this could have been reached is not readily perceived. Before answering, she had the right to confer with her attorney about these matters, whether she was a witness or a defendant, or both. Instead of giving her this right guaranteed by the Constitution and laws of this state, they placed her in jail, strictly incommunicado, the grand jury instructed the officer in charge of her not to permit anybody to talk to her, and upon application by the attorney to the court, both Judge Montrose and judge Porter, in separate motions to that effect, the motions were overruled, and they refused to let her communicate or advise with her attorney about her legal rights, or what she should do in the premises, or whatever she desired to ascertain from her attorney. Even if it be conceded, which the writer does not concede, that they had the right to force her to testify under the circumstances, still she had the right to consult with her attorney as to what her rights were, even under a contract with the state, if she had made such contract. Under her testimony there was no contract made. She testified that she was coerced into making statements under a threat, if she did not do so, she would be prosecuted and sent to the penitentiary. She certainly had the right to confer with her attorney. The Constitution guarantees that every one accused of a crime has such right. The court seems to have overlooked article 1046 of the Revised Penal Code (article 625 of White’s Ann. P. C.), which reads as follows: “If any officer or other person having the custody of a prisoner in this state shall willfully prevent such prisoner from consulting or communicating with counsel, or from obtaining the advice or services of counsel in the protection or prosecution of his legal rights, he shall be punished by imprisonment in the county jail not less than sixty days nor .more than six months, and by fine not exceeding one thousand dollars.” If the trial court or those interested in the prosecution of this case had been preparing a case so that it would have been violative •of this article, they could not have more fully come in violative contact with its provisions. An inspection of the terms of this article will show that if any person having •custody of a prisoner in this state, whether it be officer or not, shall willfully prevent a prisoner from consulting or communicating with counsel or from obtaining the advice •or services of counsel in the protection or prosecution of his legal rights, he shall be punished. Both district judges seem to have been under the impression that because she had made a statement before the grand jury, and the district attorney had proposed to ■dismiss the cases against her, therefore she was deprived of counsel in every way, even to advise or consult. It is not necessary that the party desiring counsel should be preparing a defense against some accusation after an indictment found or after arrest. The statute is broader and fully comprehends every possible situation in which an accused person or person under arrest or not under arrest desires to consult with counsel, or •communicate with counsel, or obtain advice •or services of counsel in the protection of his rights, or even supposed legal rights. ’The court further was under the impression, it seems, that the authorities could force her to testify by intimidation or any other means, provided the state purposed to render her immune from prosecution, and thereby prevent her from communicating with counsel ■or advising with counsel or obtaining the services of counsel. The court seems further to have been under the impression that, because she was playing the part of witness, therefore, the defendant in this case had no interest in the matter. In this the learned trial judge was mistaken, and mistaken in ■the face of the testimony of the woman and ■all the other circumstances connected with the whole transaction. This woman had testified before the grand jury. What that testimony was is not shown. Every time the •defendant undertook to investigate the matter the court sustained the objection. Appellant had a direct interest in the impeachment ■of Annie Wood. He had a right to know her testimony, he had a right to prepare himself against this woman’s testimony, especially in view of the fact that she did not want to testify in the case, and was coerced into doing so. In order to ascertain what the testimony would be, this defendant had the right to interrogate her, for she had been jointly indicted in the case, and had employed Mr. Matthews to look after her ease. Her case and the defendant’s were so intermingled that the rights of the one could not be well separated from the other. Incest by the very terms of the statute is constituted and must be constituted by the intercourse, in this case between appellant and Annie Wood. This was alleged in the indictment, and appellant had a right to investigate the matter to know how far she had been coerced, and to know what the parties coercing her were doing. The effect of this before the jury must, to some extent, be but conjecture. We are unable to tell what effect all this had before 'the jury when it was developed on the cross-examination of the witness as far as the court would permit that to go. When they proposed to ask whether or not she had been tortured, how she had been fed and what had been done to her in jail, most of this was excluded. They did, however, permit her to testify that she had been put in the death cell and two of the jurymen talked with her in the dark hours of the night, threatening to send her to the penitentiary if she did not swear away the liberties of this defendant. If these matters had been fully developed, the verdict of the jury might have been much more favorable to defendant. If these facts had been developed, the jury may have concluded that her testimony was false. We do know from this testimony that she was placed in the death cell in the dark hours of the night and threatened with a penitentiary conviction if she refused to testify. Under all of these circumstances, this conviction ought not to stand. Under the testimony of the officer, the bill of exception and qualification of the judge, the evidence of Mr. Matthews, who also testified as far as the court would permit him, substantiating these matters, there has been shown a clear and palpable violation of article 1046, P. C. supra, and a clear and palpable violation of the Constitution and Bill of Rights.

2. Error is assigned upon the court’s failure to charge the jury to the effect that, if appellant had a living undivorced wife at. the time he married the mother of appellant, then the intercourse with this girl, if it occurred, could not constitute incest. Exception was reserved to the failure of the court to so charge the jury. This was supplemented by written instruction requesting the court to submit the issue. The requested charge is in this language: “In this case the defendant’s counsel requests the court to charge the jury that, if the defendant had a former wife, before they can convict, it must appear from tbe evidence that tbe former wife was dead,. or a legal divorce bad been obtained prior to bis marriage with tbe mother of Annie Wood.” This was refused by the trial judge. It was an issue in the case made by tbe facts. Appellant testified that be was 63, going on 64 years of age; that be bad been married several times; that the mother of Annie Wood was bis” last wife; that be bad married previously in Utah in 1875 or 1876; that be bad lived with bis wife several years, and could not say now whether she is living or dead, but thinks she is living, so far as be knew; that be bad never heard of her death at any time, and that be was never divorced from her; that be bad not beard from her in eight or ten years; that the last time be beard from her she lived in Utah; that there was one child from that marriage; that be was under tbe impression that tbe child was in .San Francisco, at least, the child was taken to San Francisco; that be did not know whether the child was dead or not; that it had diphtheria at that place, or such wms his information. He further testified that he had not been able to pay much attention to that marriage after he had to go into service; that he never knew or heard of her death at the time he married this last woman. The brother of appellant, W. H. Hamilton, testified that he was 10 years the senior of appellant, and he knew of the marriage by correspondence, etc., of his brother and his former wife, and that his wife had such child, etc., living; that, if she had ever died, he knew nothing of it; that he had never heard of it. The court refused this special charge because he did not think this raised the issue. The court may not have believed the testimony. Probably did not believe it, but that is not a matter to be solved by the judge; that is a fact for the jury under appropriate instructions.

In McGrew v. State, 13 Tex. App. 340, it is said: “To establish the crime thus charged, it was essential that the state should prove that Ann. McGrew, the mother, was the lawful wife of defendant. It is shown by the evidence before us that the parties were married according to the forms of law. But the evidence further shows that a previous marriage had existed between Ann McGrew and one Andrew Jameson, and that the girl with whom the incestuous intercourse was had was the issue of this previous marriage. 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 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 ‘my 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 MfcGrew by virtue of such illegal marriage. If she was not his lawful wife, then the illicit connection of McGrew with hér 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.”

In Harville’s Case, 54 Tex. Cr. R. 426, 429, 113 S. W. 283, 284, the McGrew, Case is followed. This quotation from the Harville Case may be sufficient for this case: “Bill of exceptions No. 4 shows the state’s counsel proved the following by J. W. Westerman: ‘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. I-Iarville 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 fellow killed him. Mr. Harville has been living down in that country about 10 years. I did not know Mrs. 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, I have heard Mrs. Har-ville state that he was dead.’ ” Then follows the quotation already cited from the McGrew Case. See, also, Stanford v. State, 42 Tex. Cr. R. 343, 60 S. W. 253; Williams v. State, 86 Ga. 550, 12 S. E. 43. In McCombs v. State, 50 Tex. Cr. R. 490, 99 S. W. 1017, 9 L. R. A. (N. S.) 1036, 123 Am. St. Rep. 855, 14 Ann. Cas. 72, after an exhaustive research of the authorities, the proposition is laid down that while the previous wife was living and undivorced a subsequent marriage would be illegal, and would not create the legal marital relations in any way. The substance of that case is found in one of the headnotes of the opinion as follows: “Where, in a prosecution for bigamy, the evidence showed that defendant was legally married by virtue of a marriage license; that while this marriage existed he entered into a bigamous marriage by virtue of a second marriage license, and about a year thereafter the first wife obtained a divorce from him; that he continued to live with his second wife (who believed she was legally married to defendant by reason of the second marriage license) for about a year- longer, when he finally separated from her, and some two or three years thereafter married a third wife by Virtue of a marriage license, whereupon he was charged with bigamy. Held, that the prosecution could not be maintained. It is essential in this crime that the preceding marriage must be legal, and the next illegal: and. inasmuch as the marriage preceding defendant’s last marriage was void and the last one legal, he was guilty of no offense. A great many eases and authorities are cited in the McCombs Case unnecessary here to cite, but reference is made to that case for those authorities. The court erred in not submitting this issue and further erred in not giving the special' requested charge.

3. There are several other questions presented in different forms arising out of the action of the court in regard to Annie Wood, the manner of obtaining her testimony, her incarceration, and refusing to permit counsel to communicate with her, all of which, we think, has been gone over in a general way without going over the different phases and branches thus presented.

4. There are quite a number of other interesting questions in the case that might be gone into and discussed, several of them growing out of the rulings of the court with reference to Annie Wood, conduct of. the jury and the deputy sheriff, and incidental matters of that sort, germane to the first question discussed in this opinion. We deem it unnecessary to go' into them in view of what has been said. As illustrative of the previous conduct and as a reason why the motion for new trial should háve been granted, the following is set out in a bill of exception: “My name is George Dugan. I am a deputy sheriff of Hunt county, Tex. I have been a deputy sheriff for more than a year preceding this time. There is a negro trusty down at the jail, named Roger Owens. He was down there during the period that Annie Wood was in jail. Yes; I sent some notes myself to the witness Annie Wood. Yes; these notes purported to be from the defendant, E. B. Hamilton. She thought they were from him. . Yes; I think she was convinced that the notes were from E. B. Hamilton. ■ The notes were not signed by initials of E. B. Hamilton. Yes; these notes were in imitation of the defendant, E. B. Hamilton’s, handwriting. Yes; I wrote them. In substance, the notes stated: ‘If they take you out this evening, go ahead and talk, and tell the truth.’ I wrote the notes myself.” This was relied on, among, other things, for granting a new trial. It is unnecessary to discuss this testimony and the effect of it, inasmuch as the case must be reversed on other questions.' It shows, however, the general treatment of this witness and thé dé-fendant, and the unfairness of "the trial and the manner of obtaining this conviction.

The judgment is reversed, and the cause is remanded.  