# Norwood v. State > Court of Criminal Appeals of Texas · November 16, 1916 · 80 Tex. Crim. 552 URL: https://www.frixlaw.com/law-library/cases/3923236 ## Case - **Full name:** Wiley H. Norwood v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** November 16, 1916 - **Citations:** 80 Tex. Crim. 552; 192 S.W.2d 248; 192 S.W. 248; 1916 Tex. Crim. App. LEXIS 394 - **Precedential status:** Published - **Opinion:** Addendum - **Judges:** Davidson, Pbendebgast - **Cited by:** 12 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/3923236 ## Opinion text The motion for rehearing insists the court erred in the original opinion holding the argument of the district attorney was not improper. The bill of exceptions is substantially set out in the original opinion. The court recognized the rule that confidential communications of the wife could not be used or introduced against her husband. The statute, article 794, C.C.P., provides that "Neither husband nor wife shall, in any case, testify as to communications made by one to the other, while married; nor shall they, after the marriage relation ceases, be made *Page 564 witnesses as to any such communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial." This statute, therefore, directly and positively interdicts the use of such confidential communication. This has been the law in Texas from the inception of our jurisprudence. It has been held that one spouse can not be used to impeach the testimony of the other, by proving contradictory statements, as this would be allowing testimony of communications made while the marriage relation subsisted between them. Roach v. State, 41 Tex. 261 . The defendant's wife testifying for him can not be cross-examined relative to privileged communications. This was decided in Owen v. State, 7 Texas Crim. App., 329. In Spivey v. State, 45 Tex. Crim. 496 , it was held that in a murder prosecution it was shown that appellant had been laboring under an insane delusion that his wife had been intimate with deceased. His wife testified that after the arrest her husband told her that he wanted her to testify that deceased had made indecent proposals to her and that it would go hard with him if she did not. It was held this testimony was inadmissible, and should have been excluded. In McDonald v. State, 73 Tex.Crim. Rep., it was held that a statement by accused to her husband made on the latter's request as to the cause of the trouble between accused and the husband's wife, that accused had heard that the wife had had intercourse with other men, was privileged as a confidential communication. It has also been held in Pace v. State, 61 Tex.Crim. Rep., that a confession by a husband to his wife that he killed a man is absolutely privileged and can not be used, even though he be dead. Again, in Miller v. State, 65 Tex.Crim. Rep., it was held that confidential communications of a wife to her husband can not, after their divorce, be testified by him for the State on a prosecution of her. The same rule was laid down in Davis v. State, 45 Tex.Crim. Rep.. It was held in that case that the testimony of a divorced wife to a threat made by her former husband against one with whose murder he is charged, in the course of a conversation with the witness prior to the divorce, is inadmissible. These cases are cited in connection with the statute quoted to show how that statute has been construed and held by the appellate courts in Texas. In fact, there could be legally no other sound construction, the words being express and implicit. The same rule was laid down in Gant v. State, 55 Tex. Crim. 284 ; Gross v. State, 61 Tex.Crim. Rep.; McDonald v. State, 73 Tex.Crim. Rep.; and Eads v. State, 74 Tex.Crim. Rep.. It is also laid down in Owen v. State, 7 Texas Crim. App., 329, that no inference of the truth of the facts sought to be elicited can be deduced where the question is privileged and unanswered. This language is used: "If the witness declines answering, no inference of the truth of the fact is permitted to be drawn from that circumstance. And no answer forced *Page 565 from him after he has claimed protection can afterwards be given in evidence against him." We have another statute, article 795 of the Code of Criminal Procedure, 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." This statute has been held to be mandatory, and that the wife will not be permitted to testify to criminative facts against her husband, and the judgment has been reversed where this has been permitted, although no exception had been taken. Among the cases so holding is Brock v. State, 44 Tex.Crim. Rep.. That case has been followed in a number of opinions. Among the later cases is the Eads case, supra. That opinion was by Judge Harper and is here directly in point. Judge Harper uses this language: "However, we have never gone to the extent of holding that the State, while introducing its evidence, could so use the wife as to convey to the jury that if permitted the wife would testify against the husband and give the lie to the testimony introduced by him and testified to by him. Appellant had not closed the mouth of his wife — the law did that. Whether it is best for the law to do so may be a question about which minds differ, but we do not think anyone can question that it is the law that does so now. Neither, under the authorities, was it a provision of law which appellant could waive in behalf of the State, and counsel for the State was in error in so stating in the presence of the jury, and it was highly improper for him to ask appellant while on the witness stand `if he, appellant, would waive his objections and permit his wife to testify in behalf of the State.' This was unfair cross-examination, for the law does not sanction him giving such waiver. He had killed his wife's father. If he did not desire his wife to testify that continued friendly relations might continue between her and her mother, this was commendable in him. If, on the other hand, his wife had turned against him because he had killed her father, the law says that the communications that took place between her and appellant should not be disclosed by the wife, and she can not testify against him, now that perhaps she feels unfriendly towards him because he is charged with killing her father. The State by its remarks and by its conduct could not have done otherwise than to have created the impression on the minds of the jury, that if `appellant had not closed the mouth of his wife' she would have denied communicating any such threat to appellant as he testified to and the witness Hill testified she did communicate, and this was the object and purpose of the State in its conduct and by its remarks. Such evidence from that source, the law says, is inadmissible, and it was such error as ought to and will cause a reversal of this case." A portion of that opinion shows the condition of the case under which the matter arose. The State asked, in the Eads case, this question of appellant while he was testifying: "You know that under the law your wife can not testify *Page 566 in this case unless you waive your objection to her testimony?" and when appellant's counsel objected to the question, State's counsel remarked: "All the authorities hold that a wife can testify unless the defendant objects to same — we can tender this woman as a witness, and if they object, her mouth is closed, but if they do not object, the law books say that the witness is competent." After appellant had testified counsel for the State called Mrs. Eads, appellant's wife, around and had her take the witness stand, and forced appellant then and there in the presence of the jury to object to her testifying; and, in his closing argument to the jury State's counsel argued to the jury that "appellant had closed the mouth of his wife by refusing to waive objections to her testimony with reference to the threats made which had been testified about, which she communicated to the defendant," etc. It was highly improper to permit State's counsel to call appellant's wife to the witness stand. Article 795 of the Code of Criminal Procedure provides that "the husband and wife may, in all criminal cases, be witnesses for each other, but they shall in no case testify against each other except in criminal prosecutions for an offense committed by one against the other." This provision of the statute is discussed at length in Brock v. State, 44 Tex.Crim. Rep., and the authorities digested, and it was there held that was a matter the person on trial could not waive, because the statute had provided that she was an incompetent witness; that she can be a witness for him, but not against him, and when called by him she can only be cross-examined about matters which he had elicited on direct examination. Of course, this would embrace matters which would tend to show that her testimony was false, but in no instance can the State first call the wife as a witness except in case of an offense committed by him against her. The rule announced in the Brock case, supra, has been adhered to in Davis v. State, 45 Tex. Crim. 292 ; Spivey v. State, 45 Tex.Crim. Rep.; Yeiral v. State, 56 Tex.Crim. Rep.; Woodall v. State, 58 Tex. Crim. 513 . That rule was recognized under article 795 that such testimony was inadmissible and would cause a reversal. Confidential communications under article 794 once made under the statute shall forever remain inviolate and privileged. If the testimony is not admissible, any attempt to prove it before the jury would be an attempt to violate its mandatory provisions. If it could not be introduced directly, it could not be so introduced or used indirectly. This would be an evasion of the statute to its destruction. The law closes the mouth of the spouse. It is not the accused who does so. The Mercer case, 17 Texas Crim. App., 452, has been referred to and relied upon by the State. That opinion has, we think, no reference to article 794, even if it be correct in its enunciation. The question of privileged communications was not in that case. The Armstrong case, 34 Tex.Crim. Rep., is not analogous, nor on the same question. The testimony there, however, was not *Page 567 confidential communications. Moore's case, 45 Tex. Crim. 234 , was reversed because the State called the wife of the defendant to the witness stand and tendered her to the defendant as a witness. The Eads case, supra, is in harmony with the statute in reference to confidential communications. The court recognized in this case that the wife could not testify to communications made to her by her husband immediately after the killing, because it was privileged as confidential. Had he ruled otherwise it would have been making the wife a State's witness with reference to such communications. This, of course, could not be done. In Gross v. State, supra, the matter was pretty fully discussed, and authorities reviewed. It was there held that upon trial of incest, to be reversible error to admit in evidence the contents of a letter which the defendant had written his wife wherein he implored her to get his daughter and her husband out of the way, as they could put him to death; and this, although the letter came into possession of State's witness with or without connivance of the wife, as the same was a privileged communication. This follows the rule laid down in Cole v. State, 48 Tex.Crim. Rep., and other cases cited in that opinion. See also Hearne v. State, 50 Tex.Crim. Rep.. In Hearne's case letters seem to have been written by the husband to his wife, and the case was reversed because of the admission of those letters. From the Gross case, supra, this quotation is made: "The same rule has been laid down in Cole v. State, 48 Tex. Crim. 439 ; Burke v. State, 15 Texas Crim. App., 156; Davis v. State, 45 Tex.Crim. Rep.; Grant v. State, 55 Tex. Crim. 284 . In the latter case the court said: `The privilege extends beyond dissolution of marriage relation by death or divorce. Ency. of Ev., pp. 196, 197; note 43 for collation of authorities. It includes letters from one spouse to the other.' Mitchell v. Mitchell, 80 Tex. 101 ; Mercer v. State, 40 Fla. 216 ; Midland Lumber Co. v. Kreeger, 52 Mo. App., 418 ; Com. v. Sapp, 29 Am. St. Rep., 405 ; Stein v. Bowman, 13 Peters, 209 ; Saunders v. Hendrix, 5 Ala. 224 ; 1 Greenlf. on Ev., secs. 254, 337, 338, and notes; Cook v. Grange, 18 Ohio, 526; Brown v. Wood, 121 Mass. 137 ; Maynard v. Vinton, 59 Mich. 139 ; Jacobs v. Hesler, 113 Mass. 157 ; Hitchcock v. Moore, 70 Mich. 112 ; Smith v. Potter, 27 Vt. 304 ; Brock v. Brock, 9 Atl. Rep., 486 . The above list of cases is cited in Gant's case, supra." It is contended by appellant in his bill of exceptions that State counsel's argument was harmful, prejudicial, inflammatory, and clearly inadmissible from any standpoint. We agree with his contention. For the reasons indicated the motion for rehearing is granted, the affirmance set aside, and the judgment reversed and the cause remanded. Reversed and remanded. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3923236. Public record. Not legal advice.