
    REDWINE v. STATE.
    (No. 3992.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    1. Witnesses <&wkey;52(7) — Competency — Husband and Wife.
    In a prosecution for rape, census affidavits of prosecutrix’s mother, the vrife of defendant, showing the age of prosecutrix, introduced as original evidence, and taken out of the hearing and knowledge of defendant, are inadmissible, though they might have been used for corroboration or impeachment of the mother if she had testified.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 132-134; Dec. Dig. &wkey;52(7).]
    2. Witnesses <&wkey;52(7) — Competency — Husband and Wife.
    In a criminal prosecution, the state cannot use the testimony of defendant’s wife, nor call her as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 132-134; Dec. Dig. <&wkey;>52(7).]
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    S. W. Redwine was convicted of rape, and appeals.
    Reversed and remanded.
    Faver & Allison, of San Saba, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of rape on a girl under 15 years of age; his punishment being assessed at 28 years’ confinement in the penitentiary.

Among other questions presented for review, bills of exception recite that certain named witnesses were permitted to testify they took the school census for 1911, 1912, 1913, and 1914, at least for two or three years, and that name of the prosecutrix ap- * pears upon the census roll, as does the names of the brother and sister of the prosecutrix. These reports show that prosecutrix was born August 16, 1900, making her less than 15 years of age at the time of the alleged rape, the last act being shown as having occurred on the 20th of December, 1914. These census affidavits were made by the mother of the prosecutrix; appellant being the stepfather of the prosecutrix. This was used as original testimony, and therefore illegitimate. The mother did not testify, being the wife of the defendant. He did not see proper to call her as a witness. The state could not use her testimony, nor call her as a witness. Had she taken the witness stand and testified, under a proper predicate, these affidavits could have been used to impeach or corroborate, owing to how the question would arise. This matter has been the subject of decision in our courts on the question of impeachment and sustaining the impeached witness. Walton v. State, 178 S. W. 358; Hopkins v. State, 180 S. W. 1094. These census affidavits were used as original testimony, were made by the wife, and all but one were taken out of the hearing of the defendant, and of which he seems to have had no knowledge; at least he was not present when those matters occurred. There is doubt as to the remaining one as to whether he heard it or not. If he heard this, it might be intra-ducibie, but the issue is there as to whether he heard it or not, and the jury should be guarded against using the statements unless it be shown that appellant heard them.

There is also a question with reference to the introduction of the Bible and the supposed erasures, showing the birth of the girl. It is unnecessary to pass upon the matter as to whether the bill was proper and the Bible admissible. There were changes in the entry. These matters can be properly adjusted upon another trial.

The judgment is reversed, and the cause remanded. 
      (fcvjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     