Compton v. State.

On the trial Mrs. Compton, wife of defendant, was placed upon the stand by the prosecution as a witness against him. She was objected to by defendant as incompetent for the purpose under our statute, which provides that "the husband and wife may in all criminal actions be witnesses for each other, but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other." Code Crim. Proc., art. 735. This objection was overruled, and the witness permitted to testify. In his ruling the learned judge doubtless was guided and controlled by two decisions of this court, the cases of Morrill v. State, 5 Tex. Ct. App. 447, and Roland v. State, 9 id. 277, to the effect that adultery of one of the parties to the marriage contract was in its nature such a crime committed against the other as to render that other competent to testify against the offending party. If this doctrine was correct, then it would follow inevitably that in a case of incest such testimony would be undoubtedly competent a fortiori, because to the wrong of adultery is added the double wrong and injury that it is an outrage upon nature in its dearest and tenderest relations, as well as a crime against hu manity itself.

The question is, do the decisions in Morrill's and Roland's cases lay down the correct rule, or is the doctrine as enunciated a strained and unwarranted construction of the language of the statute supra? The exception is that they are competent to testify in "prosecutions for an offense committed by one against the other." We are aware that the cases of Morrill and Roland are not without authority to support them. Notably as in Bennett v. State, 31 Iowa, 24, cited in Morrill's case, and in Tilton v. Beecher, a celebrated case of crim. con., wherein the plaintiff was offered as a witness to prove his wife's adultery, and after elaborate argument and citation of authority the court held he was entitled to testify. See note 6 to Whart. Crim. Ev., § 396. Again, in Sloan v. People, a case recently decided by the Supreme Court of Iowa, it was held that the first wife is a competent witness against her husband who has been indicted and is upon trial for bigamy, it being a crime committed against her.

A more thorough investigation and consideration of the subject has however led us to conclude that the great weight of authority, English and American, is against the doctrine of the Morrill and Roland cases, and appears to be more consonant with the

Compton v. State.

reason and policy of the law. Before those decisions were rendered (a fact which seems to have been overlooked, at all events it is not noticed or alluded to in either of those opinions), our Supreme Court held, in construing this statute, that the wife could not testify against her husband upon trial for theft of her property; and the language used in reference to the meaning of the statute was that its plain and obvious import is to limit the permission given to the husband and wife to testify against each other to prosecutions for personal offenses by one against the other." Overton v. State, 43 Tex. 616.

The wife is also

Mr. Russell, in his work on Crimes, says: admitted as a witness against her husband ex necessitate in a prosecution of him for offenses against her person.

But this rule seems to be confined to cases where the charge affects the liberty or the person of the wife." Sharswood's Russell, vol 2, p. 984.

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Mr. Wharton says: "Marriage however being proved, neither husband nor wife is competent at common law to testify in a suit for or against the other. Thus the husband is incompetent in a prosecution against his wife for her adultery, and so, mutatis mu tandis, is the wife against the husband; but if the paramour be prosecuted singly, it is held that the restriction does not continue in force." Whart. Crim. Ev., § 390. Again he says: Where however violence has been committed on the person of the wife by the husband she is competent to prove such violence. Hence on the trial of a man for the murder of his wife, her dying declara tions are evidence against him. And in all cases of personal injuries committed by the husband or wife against each other the injured party is an admissible witness against the other. And it is plain that in cases not involving personal injury the wife cannot at common law be called against her husband.' $ 392.

And again: "The reason for the exclusion of husband and wife when called for or against each other being social policy and not interest, statutes abolishing incompetency resting on interest do not remove the common-law incompetency of husband and wife for or against the other." § 400. In New York it has been held that upon a trial of the husband for bigamy the wife was incompetent to testify against him. 24 New York, Hun, 501; Whart. Crim. Ev. 397.

Haun v. State.

Our conclusion is that reason and the weight of authority is against the rule upon the subject as laid down in Morrill v. State and Roland v. State, and so those cases are overruled.

We are of opinion that Mrs. Compton was not a competent witness in the prosecution for incest against her husband, and that the objections to her testimony were improperly overruled. Other questions presented not incident to this are not deemed of sufficient importance to require discussion.

The judgment is reversed and the cause remanded.

An indictment concluded, “against the peace and dignity of the State, this the third day of November, 1882." Held, a violation of the constitutions! provision that indictments shall conclude “against the peace and dignity of the State."

ONVICTION of forgery. The opinion states the case.

CONVICTION

Crane & Sparkman, for appellant.

J. H. Burts, assistant attorney-general, for State.

WILLSON, J. In this case the indictment concludes as follows: "Against the peace and dignity of the State, this the third day of November, 1882." Exceptions were made to the indictment and overruled. One of the exceptions urged to the indictment was that it did not conclude as required by law. We think this exception was well taken and should have been sustained.

In the case of Cox v. State, 8 Tex. Ct. App. 254; s. c., 34 Am. Rep. 746; this question is elaborately discussed, and all the authorities bearing upon it are reviewed and cited, and the conclusion arrived at that it is a constitutional requirement that the conclusion of an indictment shall be "Against the peace and dignity

Haun v. State.

of the State," and that this is a matter of substance as well as of form, which it is not within the power of the courts to dispense with or disregard.

It is contended by the assistant attorney-general that the words "this the third day of November, 1882," with which the indictment concludes, are no part of the indictment, and should be treated as surplusage. In support of this view he cites Thomas v. State, 8 Tex. Ct. App. 344. In that case the words "a true bill," were indorsed on the margin of the indictment. The words objected to did not form a part of the indictment, as in this case. They did not follow the words "against the peace and dignity of the State," as they do in the indictment before us.

What are we to understand by the conclusion of an indictment ? Does it not signify the end of it, the final termination of the allegations of the pleader? We think it can mean nothing else. It is required that the conclusion shall be "Against the peace and dignity of the State." Nothing more shall be alleged or stated after these words. They constitute the end, the final termination of the indictment. If this be not the meaning of the requirement, we confess we are unable to say what it does mean. If the words with which this indictment concludes are no part of it, and can be rejected as surplusage, then any other words or allegations with which the pleader may choose to conclude his indictment may be so treated, and if this be the construction which should be placed upon the constitutional requirement under discussion, it would render it meaningless, and of no imaginable efficacy. This view of the question we do not consider is in conflict with State v. Pratt, 44 Tex. 93, in which it was held that the addition of the word "Texas" after "State" did not vitiate the indictment, because that word neither detracted from nor added to the sentence, but meant exactly the same thing.

[Minor points omitted.]

Reversed and remanded.

A verdict of "guilty of murder in the fist degree " is invalid. (See note, p. 716.)

CONVICTION of murder in the “fist degree.”

states the point.

H. Chilton, assistant attorney-general, for State.

The opinion

WHITE, P. J. [Omitting other matters.] We come now to the consideration of the objections urged to the sufficiency and validity of the verdict. It is in these words, viz.: "We the jury find the defendant Ben Wooldridge guilty of murder in fist degree, and assess the punishment of death."

Instead of the word "first" the jury have used the word "fist" or in spelling the word "first" have omitted the letter "r." This is the error contended for, i. e., that the jury have not found the defendant guilty of murder in the first degree, and that conse quently the judgment rendered was not warranted, nor is it sup ported by the verdict. Defendant presented the insufficiency of this verdict as one of the grounds of his motion for a new trial, which was overruled. A most serious question is here presented, and no case directly in point has been found in our own or the de cisions of other courts of the country. We must determine it by a fair and proper construction of our statutes relating to the subject. matter, and by analogies drawn from well settled principles of the law. It is to be particularly noted that here we have no case of the misspelling of a word; the word used is "fist," is properly spelt "fist," and is a word as well defined and as well known to the English language as any other word in daily common use. It is further to be noted that this word "fist" is not pronounced, and cannot by any contortion of pronunciation be made to sound, like the word "first ;" and consequently the well recognized doctrine of idem sonans is not applicable and must be eliminated from the discussion.

Now what are the statutory and legal rules with regard to verdicts?