
    JOHNSON v. STATE.
    (No. 10258.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    1. Criminal law <&wkey;407(2) — Defendant may remain silent or make statement, which may be used against him, touching declarations in his presence, not amounting to accusation or calling for reply.
    Defendant may remain silent touching declarations in his presence, .not amounting to accusation against him nor calling for reply, or he may make statement, which may be used against, but not for, him in trial.
    2. Criminal law <&wkey;407(2) — Testimony in mur- . der trial as to statement within hearing of defendant, who did not reply, that he and deceased had had trouble, held inadmissible.
    In murder trial, testimony as to statement within hearing of defendant, who made no reply, that he and deceased had had trouble, held inadmissible, as amounting to proof of his silence about matter he was not called on to explain and involving no accusation against him.
    3. Witnesses <©=>379(2) — Testimony as to statement by defendant’s wife that defendant shot deceased held admissible to impeach her.
    Testimony that defendant’s wife made statement, denied by her on cross-examination, that defendant and deceased had had trouble, and that defendant shot him, held admissible to impeach her, where she testified on direct examination that killing was accidental.
    4. Witnesses &wkey;>3l9 — Wife, testifying for husband, may be impeached on predicate relating to her direct testimony.
    A wife, testifying for her husband, may be impeached, as any other witness, on a predicate relating to her testimony in chief.
    Commissioners’ Decision.
    Appeal from District. Court, McLennan County; Richard I. Munroe, Judge.
    Clarence Johnson was convicted of murder, and he appeals.
    Reversed and remanded.
    Miller & Price and Joe W. Taylor, all of Waco, for appellant.
    C, S. Parmer, Co. Atty., and John B. McNamara, both of Waco, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted for the offense of murder, and his punishment assessed at five years in the penitentiary.

This is the .third appeal of this case. Opinions on the other two appeals may be found in 98 Tex. Cr. R. 109, 263 S. W. 301; 100 Tex. Cr. R. 215, 272 S. W. 783. Por a statement of the facts, reference is made to these opinions.

Appellant, in his bill of exception No. 1, complains of the admission of the following testimony of the witness Mrs. J. C. Cordell, who testified as follows:

“When I asked Mrs. Johnson what was the trouble or matter with Mr. 'Porter, I think I spoke in a voice loud enough for him to hear in that room what I asked Ms mother. When she replied to that question, she replied in a voice loud enough for Clarence Johnson to have heard it, if there was no defect in his hearing. In reply to my question Mrs. Johnson told me that she could not tell me anything; only him and Mr. Porter had had trouble. Clarence did not make any statement in reply to that answer of Ms mother to my question.”

The contention of the appellant is that this testimony was not admissible—

“because the statement, ‘Mr. Porter and Clarence had had some trouble,’ is not an accusation of guilt, and because it did not charge the defendant with the commission of an offense, and because said statement was not addressed to the defendant, but that, if made at all, it was addressed to the witness Mrs. Cordell, and because, if said statement was heard by the defendant, it was a statement or declaration that called for no answer, and because it was not definitely shown that the defendant heard said statement, if made.”

The rule governing the admission of testimony of this character is expressed in the case of Crowell v. State, 56 Tex. Cr. R. 480, 120 S. W. 897, and quoted by Judge Morrow in the comparatively recent case of Ritter v. State, 92 Tex. Cr. R. 247, 242 S. W. 469, which we again quote:

“It is well settled that it is error to admit in evidence a defendant’s silence touching declarations made in his presence, unless such statements in effect amount to an accusation against him, and are of a character calling on him to make reply.”

As we understand the law, the defendant may remain silent in such a case, or he may make any statement concerning the alleged charge against him, confronted, however, with the fact that any statement he may make can be used against him, and not for him, in the final trial.

The reply made by Mrs. Johnson to the witness does not charge the appellant with the commission of the offense, and we see nothing in her statement regarding the trouble that would require the appellant to break the silence which he had chosen to maintain. The question was propounded directly to Mrs. Johnson and was concerning the “trouble or matter with Mr. Porter,” and Mrs. Johnson answered the question in such a way as not to amount to an accusation against appellant, and her answer called for no reply or statement from appellant. Appellant was not under arrest at the time, and anything he may have said on that occasion could have been used against him. The admission of this evidence amounts to nothing more nor less than proof of the silence of the appellant about a matter that he was neither called on directly nor by circumstances to explain or make any reply to, and concerning a conversation in which no accusation is made against him. In addition to the cases above referred to, see Johnson v. State, 100 Tex. Cr. R. 215, 272 S. W. 783.

What we have said with reference to bill of exception No. 1 applies with equal force to the matters complained of in bill of exception No. 2.

Bill of exception No. 3 sets out all of the evidence on direct examination of Mrs. Sadie Johnson, the wife of the appellant, and then complains that the state, upon cross-examination, was permitted to ask the following question:

“I will ask you if it is not a fact that within a few minutes after the shooting you did not state to your sister, Mrs. Jessie Bewley, that Clarence and your father had had some trouble, and Clarence shot him?”

To this question, the witness Mrs. Sadie Johnson answered that she did not so state. Whereupon the state placed on the witness stand Mrs. Jessie Bewley, who testified that Mrs. Sadie Johnson, wife of appellant, did make said statement to her within a few minutes after deceased was shot.

No error was committed in admitting this testimony. Appellant’s wife, on her direct examination, testified the killing of her father by her husband “was purely an accident.’ Judge Lattimore, in the case of Bell v. State, 88 Tex. Cr. R. 64, 224 S. W. 1108, reiterates the well-established rule in the following language:

“It is the settled law of this state that a wife, testifying for her husband, may be impeached, as any other witness, upon a predicate relating to her testimony in chief.” McDougal v. State, 79 Tex. Cr. R. 254, 185 S. W. 15; Baker v. State, 79 Tex. Cr. R. 510, 187 S. W. 949.

What we have said with reference to bill of exception No. 3 disposes of bill of exception No. 4.

We pertermit a discussion of bills of exception Nos. 5 and 6, in view of the disposi-1 tion of this case, as the errors complained of therein will not likely occur upon another trial.

Since this case will necessarily have to be reversed, the question whether or not the learned trial judge erred in overruling appellant’s motion for new trial will not be discussed, as the error complained of in said motion regarding misconduct of jury will likely not occur on another trial.

Eor the errors complained of, the judgment of the trial court is reversed, and the cause remanded.

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. 
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