
    DAVIS v. STATE.
    (No. 8083.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1924.)
    1. Appeal and error <S&wkey;389(3)— Making of affidavit in forma pauperis in due form is sufficient in absence of contest.
    Where the term of court at which a divorce was granted to defendant’s wife had adjourned,-defendant, on petition for writ of error, could make proof of inability to pay the costs by affidavit made before the county judge of the county of defendant’s residence, and the affidavit, if made in correct form, was all that was necessary to support the petition for the writ, in the absence of contest.
    2. Divorce <&wkey;182 — Statute providing judgment not suspended when supersedeas bond not filed held not to apply to divorce judgment.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2100, providing that the filing of affidavit in lieu of supersedeas bond shall not effect suspension' of judgment, but that execution may issue thereon as if no writ of error had been taken held not to apply to a judgment of divorce, since such a judgment needs no execution.
    3. Witnesses <&wkey;64(!) — Effect on judgment of divorce of filing of petition for writ of error, supported by affidavit in forma pau-peris, stated as respecting competency of parties to testify.
    Filing of petition by defendant in divorce suit for writ of error, supported by his uncontested affidavit in forma pauperis, held to render divorce judgment so far ineffective that neither party could testify against the other in a criminal case, except as provided by Code Cr. Proe. 1911, art. 795, until and unless there was some disposition of the writ of error.
    4. Criminal law <&wkey;368(I) — Witnesses <©=> 193 —Communications between husband and wife held res gestas and unprivileged, when in presence of others.
    In a prosecution of accused for assault to murder his sister-in-law in a difficulty between accused and his wife, following her refusal to return to him, if the wife was competent as a witness, what was said to her at the beginning of the difficulty and by her to accused was admissible against him as res gestae and as unprivileged communications when made in the presence of others.
    5. Homicide <&wkey;l7l(3) — Evidence of occurrences at house near that where assault occurred admissible.
    Where accused shot several persons at one house, and .then followed those who fled to another house a few feet away where he shot another, evidence of what occurred at the second house held admissible on trial for assaulting one of the persons at the first house.
    6. Homicide <&wkey;!7l (3) — Prior assault by accused upon his wife held admissible to prove malice in shooting his sister-in-law.
    In a prosecution for assault to murder accused’s sister-in-law in a quarrel with his wife which resulted in the shooting of accused’s wife and her sisters, it was permissible as shedding light on the question of malice to prove the prior assault by accused upon his wife.
    7.Criminal law &wkey;>7l4 — Prosecuting attorney’s remark that grand jury spent week in investigating offense held improper.
    In a prosecution for assault to murder, remarks of prosecuting attorney that the grand jury spent a week in investigating the offense was manifestly improper.
    Appeal from District Court, Stephens County; C. 0. Hamlin, Judge.
    Carter Davis was convicted of an assault to murder, and he appeals.
    Reversed and. remanded.
    Kirby, King & Overshiner, of Abilene, for appellant.
    E. L. Routh, Dist. Atty., of Breckenridge, Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of De-vine, for the State.
   LATTIMORE, J.

Appellant was convicted' in the district court of Stephens county of an assault to murder, and his punishment fixed at 10 years in the penitentiary.

Appellant and his wife had separated, and she was living with her mother and sisters in a house a few feet from one occupied by another sister of hers and the husband of said sister. Appellant went to the place where his wife was living, and engaged her in conversation relative to returning to him. Upon her refusal he shot her and almost immediately following shot her sister, the deceased in this case, and then shot another sister. He then followed those of the women who fled to the adjoining house, and there shot that one of his wife’s sisters who lived in the neighboring house. He was tried and convicted in this case for the shooting of Lizzie Pool, one of his wife’s sisters, who was with her at the time the shooting first began.

Appellant’s wife was offered as a witness against him upon this trial. He objected to her testimony upon the ground that being his wife her testimony was inadmissible under article 795 of our Code of Criminal Procedure. This objection * was overruled upon the proposition that subsequent to the shooting in question, and prior to the instant trial, the wife had been granted a divorce from appellant. Appellant then interposed the further objection, or made-known to the court the fact, that prior to the call of this case for trial he had filed a petition for a writ of error to the Court' of Civil Appeals of the district, in the 'divorce case, and had supported same by an affidavit in forma pauperis which had been mads by him before the county judge in the county of Ms residence and winch seems to have been in all things in conformity with the law relative to the form of such affidavit. The learned trial judge overruled the objection, and his action is complained of in bill of exceptions No. 5, to wMch appears the following qualification:

“The divorce was granted January 2, 1923. There was no motion for a new trial nor appeal taken, the term of court had adjourned when Cubie Davis was placed on the witness stand by the state in this case. Defendant’s counsel then objected for the reason that defendant had filed application for writ of error and had filed his pauper’s affidavit in lieu of bond. No proof was offered before this court of defendant’s inability to give bond nor was he permitted under order of this court to prosecute said writ without bond. Copy of said affidavit of inability to give bond showing filing is hereto attached and made a part of this bill.”

The affidavit being in proper form, as stated above, and being sworn to before the county judge of the county of residence, and there being nothing in this record by which we are informed there had been any contest of said affidavit, we are unable to appreciate the force of the statements of the learned trial judge in the qualification above quoted. The term of court at' which the divorce was granted had adjourned, and it was permissible to make proof of inability to pay the costs or any part thereof by affidavit made before the county judge of the county of residence. In such case, as we understand the authorities, the making of said' affidavit in correct form before said county judge would he all that would be necessary to support the petition for the writ in the absence of a contest. Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659; Wood v. St. Louis S. W. Ry. Co., 43 Tex. Civ. App. 590, 97 S. W. 324; Thompson v. Hawkins (Tex. Civ. App.) 38 S. W. 236; Currie v. M., K. & T. Ry. Co., 101 Tex. 478, 108 S. W. 1167; Majors v. Goodrich (Tex. Civ. App.) 68 S. W. 290.

Our construction of article 2100, Vernon’s Civil Statutes, which provides that the filing of affidavit in lieu of a supersedeas bond, aá provided for in the three preceding articles, shall not have the effect of suspending the judgment, hut execution shall issue thereon as,if no writ of error had been taken, as applied to a judgment merely for divorce, is that it would have no application. A judgment for divorce needs no execution. It fixes finally the status of the parties. To conclude that the perfecting of a writ of error from a decree of divorce by making an affidavit in forma pauperis would leave a final judgment effective so that the parties might proceed thereunder as if the marital relation had been ended and concluded by the judgment — might marry again, etc. — would be to make light of the law authorizing a reversal on such appeal by the writ. Our conclusion is that the filing of the petition for the writ of error, supported by the affidavit mentioned, in the absence of any contest, would so far render the judgment ineffective as that neither party could testify against the other in a criminal case except as provided in article 795, above mentioned, until and unless there be some further showing as to the disposition of the writ of error.

Other questions are in this case. If the wife be competent to testify as a witness for the state, we think the things said to her at the beginning of the difficulty, and by her to appellant, were admissible both as res gestse and also under that rule which holds that communications made by the husband to the wife in the presence of other people are not privileged. We also think that what occurred at the house of Joe Sylver immediately after the beginning of the shooting and in which Sylver’s wife was shot and also Lizzie Pool, was admissible. The shooting of Lizzie Pool and Bessie Sylver seems to have followed closely upon and been connected with the shooting of appellant’s wife. As shedding light on the question of malice we regard it permissible to prove a prior assault by appellant upon his wife. The language of the prosecuting attorney, to the effect that the grand jury had spent a week investigating this offense, was manifestly improper, but will not likely occur upon another trial.

For the error mentioned, the judgment will be' reversed and the cause remanded. 
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