# Taylor v. State > Court of Criminal Appeals of Texas · April 15, 1914 · 74 Tex. Crim. 3 URL: https://www.frixlaw.com/law-library/cases/3910567 ## Case - **Full name:** W. E. Taylor v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** April 15, 1914 - **Citations:** 74 Tex. Crim. 3; 167 S.W. 56; 1914 Tex. Crim. App. LEXIS 617 - **Precedential status:** Published - **Opinion:** Dissent - **Judges:** Davids, Dayidsoh, Pbendergast, Prehdergast - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3910567 ## Opinion text I can not agree with my brethren in affirming this case. The testimony as to what occurred between the Baptist minister, Bishop, and the wife of appellant subsequent to the homicide in appellant's absence is not admissible against him either as original evidence or impeaching testimony. First. It was res inter alias acta. Second. These were declarations of the wife against her husband. Third. No part of the conversation between the minister, Bishop, and appellant's wife was brought out on her direct examination by her husband, and was no part of her testimony nor of any fact brought out by him on her direct examination. Fourth. It could not be used as original evidence against her husband by the State. This is not debatable, for it would have been making *Page 15 her a witness for the State against her husband in direct contravention of the statute. See White's Ann. C.C.P., arts. 774-775. Fifth. These declarations could not be used to impeach appellant's wife under the rule laid down in the Drake case, 29 Texas Crim. App., 265. The Drake case has been followed in all subsequent decisions. I refer to Hickey v. State, 62 Tex. Crim. 568 . See, also, Saunders v. Railroad, 99 Tenn. 130 , 41 S.W. Rep., 1034 . Sixth. The State could not have used the testimony in making out its case as original evidence. White's Ann. C.C.P., arts., 774-775, and for collation of cases, see the same work, sec. 986; Drake v. State, 29 Texas Crim. App., 265; Hickey v. State, 62 Tex. Crim. 568 ; Marsh v. State, 54 Tex.Crim. Rep.. My brethren found it necessary, in order to affirm this case, to overrule the Marsh case. The opinion in that case was written by Judge Ramsey, and is a clear enunciation of the law and ought not to be overruled; but this case could not be affirmed in the face of the opinion in the Marsh case. In this connection, she was the wife of appellant, and her testimony could not be used against him. Seventh. I can not agree to the statement by my brethren that the wife is subject to the same rule as the ordinary witness as to cross-examination. This states the rule entirely too broadly, and is in direct contravention of the plain working of the statute in several respects. There is to be observed under the plain statutory language a wide difference between the attitude of ordinary witnesses in a case to the accused and that sustained by his wife towards him when she is used as a witness. To hold otherwise would abrogate the statute and render it a nullity. This was so at common law. The rule has been intensified and broadened under the statute of Texas. The difference between the wife as a witness in her husband's case and that of the ordinary witness in the same case is so widely different and so distinctly marked that it takes no discussion to understand the difference. To hold that the wife occupied the same relation to her husband's case when used as a witness as an ordinary witness would be to sap the very foundation of the law of the State. It is well recognized that confidential communications between the accused and other parties are not privileged, but between the husband and the wife it is privileged. This is by statute. It is enacted that the wife may not be used against the husband except in cases of violence by the husband upon herself. This rule does not apply to other witnesses. It is so thoroughly well settled that the wife can not be interrogated in matters other than those brought out by her husband on her examination that it is useless to refer to the authorities. This is not true as to other witnesses. For the reasons indicated I can not agree to the affirmance of the case, and most respectfuly enter this as a summary of my dissenting views. *Page 16 REFORMING SENTENCE. May 27, 1914. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3910567. Public record. Not legal advice.