
    SLIVA v. STATE.
    (No. 8966.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.)
    Witnesses <&wkey;>52(7) — When both husband and wife had been indicted for unlawfully manufacturing intoxicating liquor, and case against wife was dismissed after expiration of suspended sentence, exclusion of her testimony in husband’s behalf was error. ’
    Where both husband and wife were indicted for manufacturing intoxicating liquor, and proceedings against wife had been dismissed after expiration of a suspended sentence, it was error to exclude testimony of wife id husband’s behalf in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 865f, providing that, when a case is dismissed under suspended sentence, it cannot be further inquired into, and article 791, providing that, if case is dismissed as against one codefendant, he may testify in the other’s behalf, notwithstanding article 788.
    Commissioners’ Decision.
    Appeal from District Court, Wharton County; M. S. Munson, Judge.
    Joe Sliva was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    _ C. H. Chernosky, of Houston, Samuel J. Styles, of Bay City; and S. F. Rowan, of Wharton, for appellant.
    Tom Garrard," State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted and convicted, in the district court of Wharton county, for unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year’s confinement in the penitentiary.

There are several objections urged by the appellant to the action of the trial court, as. set out in his bills of exception 1 to 5, inclusive ; but we 'deem it unnecessary at this time to consider any of the exceptions or questions raised, except the, question raised in bill of exception No. 2, to the refusal of-the trial court to permit appellant’s wife to testify as a witness in his behalf, and in which bill it is shown and alleged that, if permitted, she would testify that appellant had nothing to do whatever with the distillation and operation of the still in question, at which the officers arrested her while she was attending to same; she claiming that she was making vinegar, and not intoxicating liquor, and that all of said utensils were her own individual property, as well as the ingredients being distilled, and that her husband was not aware of her actions in the matter, and in fact had nothing to do with it, and was not interested in it in substance.

The bill discloses that the above would have been her testimony if permitted to testify. When offered as a witness in appellant’s behalf, the. district attorney objected to the competency of the' witness because she bad been formerly convicted of .the same offense and was a coprincipal in the transaction.

The bill of exception shows that it was a fact, and so agreed upon by the state and attorneys representing the appellant,' that this witness had been convicted and given a suspended sentence for this identical transaction, and the time for the suspended sentence expired, and motion duly made in the district court, and said witness had been given a new trial, and said ease dismissed from the docket.

The learned trial judge, in sustaining the state’s contention, and in refusing to permit the witness to testify, stated that he was of the opinion that the statutes bearing on this matter were not applicable to this hind of case, and used this language:

“A portion of it [the testimony] which goes to this transaction in which they have been both indicted, on the theory that the idea of the law is that, when two parties are guilty they cannot testify for one another, unless jointly-tried, and that the term ‘dismissal,’ as used in the statutes, means a dismissal without a trial; that in this case there has been a conviction, and, under the suspended sentence law, the court is> required, at the expiration of that time, to dismiss that case, and is not a dismissal because of innocence, but a dismissal under the operation of the suspended sentence law.”

We are of the opinion, that the learned trial judge, in his construction of the statutes on this issue, was in error, and that said witness was competent to testify in this case. Article 791, Vernon’s C. C. P. 1916, is as follows:

“Persons charged as principals; accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them he dismissed, they may testify in behalf of the others.”

Article 788 of said C. C. P. is as follows:

“All persons are competent to testify in criminal actions, except the following: * * * All persons who have been or may be convicted of felony in this state, or in any other jurisdiction, unless such conviction has been legally set aside, or unless the convict has been legally pardoned for the crime of which he was convicted.”

Article 865f, Vernon’s C. C. P. 1916, is as follows:

“In any case of suspended sentence, as provided herein, upon the expiration of the time assessed as punishment by the jury, the defendant may make his written and sworn application for a new. trial and dismissal of such ease * * * which application shall be heard by the court * * *, and, if it shall appear to the court, upon the hearing of such application, that the defendant has-not been convicted of any other felony and that, there is not then pending against him any other charge of felony, the court shall enter an order reciting the fact, and shall grant the defendant a new trial and shall then dismiss said cause.- * * * After the setting aside and dismissal of any judgment of conviction as herein, provided for, the fact of such conviction shall not be shown or inquired into for any purpose, except in cases where the defendant has been again indicted for a felony and invokes the benefit of this act.”

In the cases of Espinoza v. State, 78 Tex. Cr. R. 237, 165 S. W. 208, Simonds v. State, 76 Tex. Cr. R. 487, 175 S. W. 1064, Bryant v. State, 97 Tex. Cr. R. 11, 260 S. W. 598, and many authorities we might cite, this court held that, when the parties were under the Suspended Sentence Act, same did not render them incompetent as witnesses. Of course this would not apply to coprincipals, while their cases were still pending. We think from the statutes, supra, and the authorities, supra, there can be no question but what the witness, Mrs. Sliva, was competent to testify in behalf of her husband in this case. Article 791, supra, states if the case is dismissed coprincipals can testify in behalf of each other, and article 865f, supra, states that, when the case is dismissed, as in this instance, under the Suspended Sentence Act, that ease cannot be further inquired into, which the Legislature evidently thereby intended to remove all taint, if any there’ was, under the conviction on the Suspended Sentence Act by that clause in the article.

For the reasons above mentioned, we are of the opinion that the court fell into error, and the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  