The opinion
DAVIDSOE, Judge
(dissenting).—There are several questions which,. in my judgment, ought to reverse the judgment. I do not care to discuss any of them at length, and will only mention two.
The verdict of the jury reads as follows: “We, the jury, find the defendant guilty and assess his punishment at twenty years in the penitentiary.” Appellant was tried under the new statute of murder, therefore the degrees of murder were not submitted. The court also charged the jury with reference to manslaughter. It will be observed the jury did not find of which offense they found appellant guilty—murder or manslaughter. That manslaughter is included within the general definition of homicide is made patent by the Penal Code. In the Cornelius
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case, 54 Texas Crim. Rep., 173 , the majority opinion lays down the proposition that where a party has been acquitted of murder he may be convicted of manslaughter on evidence which only justified murder, and there is some comment in that opinion with reference to the question of the degree. That matter I do not care to discuss. My dissent is found in the Cornelius case reported. That manslaughter has been considered as a degree of homicide is made evident by the statutory enactment. It has always been held, as I understand the law to be in Texas, that where murder in the first and second degrees and manslaughter are given in charge to the jury, the jury must find the degree of which they find the accused guilty. They may do so by finding him ■ not guilty of the higher offense and convict him of the lower, or it may be done with equal legality by simply specifying the degree of homicide of which he is convicted. But the verdict must designate the particular degree awarded by the jury. This principle was recognized as correct by majority opinion in the recent Essery case. This verdict does not specify whether they found him guilty of manslaughter or murder, yet they gave .him twenty years in the penitentiary. My brethren affirm on the theory that the jury sufficiently specified that they convicted him of murder. The cases of Lee v. State, 66 Texas Crim. Rep., 567 , 148 S. W. Rep., 568 , and McGee v. State, 39 Texas Crim. Rep., 190 , are cited as authority. Judge Hurt, in the McGee case, draws a distinction that may or not be erroneous, but he does assert the proposition that wherever the degree of the offense is included within the definition of the offense set .out in the statute and charged in the pleadings, the jury must find the degree. In the McGee case he held the verdict for rape was sufficient to show rape although the court submitted assault to rape. Under that particular case and statute the opinion may be correct. Of the Lee case the same may be said. I do not care to draw a technical distinction between those cases and this case, because I think they are clearly inapplicable to the question here. Under no decision of which I am aware has it ever been held that manslaughter was not included within the definition of homicide, and in fact it is homicide itself; nor has a case been called to my attention where this court has ever held that manslaughter was not included within the definition of homicide or an indictment charging murder. But as a legal proposition, it is necessarily true that manslaughter is homicide, and, therefore, necessarily included within an indictment charging murder. I am not now discussing the question as to whether the facts may call for a charge on manslaughter, - but the legal proposition remains true that manslaughter is essentially and necessarily an unlawful homicide. The McGee and Lee cases, supra, if- correct have been taken from their proper places in our jurisprudence and made to do service where they ought not to be placed. The verdict is general. It may have been for manslaughter, or it may have been murder. The jury did not specify. If for manslaughter, the punishment is not justified, and the jury having failed to specify the degree, it is not the province of the court to do so.
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The jury must always find the degree and not the court. The jury must render the verdict. The court can not do so. It is only within the province of the jury to find verdicts in felonies. In this instance the jury failed to find any degree of homicide, but the court finds the degree. For this the court has no legal authority.
There is another question that I desire to notice briefly. The wife of appellant testified. After she had testified for the defendant the State’s counsel upon cross-examination asked, “whether or not, while the defendant and his daughter, Pauline Black, were gone to Bowie, and while witness was in the home of defendant on Monday after Ira Black had left his wife on the Thursday before, did the wife of the defendant, Mrs. J. W. Roberts, say to you, £If I was Willie, I would kill Ira Black.’ ” It will be observed that the “Willie” referred to is the defendant himself, and Ira Black the deceased. The court permitted the witness to answer the question as follows: “Yes, I did hear Mrs. J. W. Roberts, wife of the defendant, say in her home, in the absence of defendant, and while the defendant and his daughter, Pauline Black, had gone to Bowie, £If I was Willie, I would kill Ira Black.’ ” It is further shown that appellant placed his wife on the stand as a witness and did not inquire of her about this matter. This was a new phase of testimony, and to be treated as new matter brought out by the State over appellant’s objection. The wife of defendant denied but was permitted to be contradicted as to these statements. I suppose by this it was intended to impeach appellant’s wife by Mrs. Ollie Roberts. My brethren lay down the rule more than too broadly that the wife can be cross-examined and treated as any other witness when she takes the stand in behalf of her husband. This clearly overrules the statute. It says the husband and wife can not be witnesses against each other except where it is a matter of personal violence of the husband against wife or the wife against the husband, nor shall the wife be permitted to testify as to confidential communications. Even after their separation by divorce confidential communications are protected by the statute. Of course, it would be useless to discuss the question that the wife is placed on the same plane as other witnesses in the case in the face of the positive interdiction by the statute. The wife may be crossed on any matter that is brought out by the defendant while using her as a witness, but this is the limit. The State can not go into new questions or introduce new matter by her. I had thought this rule was settled not only by the decisions but by the statute. I might mention quite a number of these decisions, but they are known to the profession and set forth in the reports; however, I quote some of them from appellant’s brief: Johnson v. State, 66 Texas Crim. Rep., 586 , 148 S. W. Rep., 328 ; Yieral v. State, 56 Texas Crim. Rep., 267 , 119 S. W. Rep., 848 to 851; Hobbs v. State, 53 Texas Crim. Rep., 71 ; Young v. State, 59 Texas Crim. Rep., 137 ; Brock v. State, 44 Texas Crim. Rep., 335 ; Merritt v. State, 39 Texas Crim. Rep., 70 ; Hamilton v. State, 36 Texas Crim. Rep., 372 ; Hoover v. State, 35 Texas Crim. Rep., 342 ; Welch v. State,
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46 S. W. Rep., 812 ; Washington v. State, 17 Texas Crim. App., 197; Branch’s Crim. Law, sec. 852.
Mr. Branch very tersely states the rule, and very clearly and accurately in the following language: “If the State goes into new matter on cross-examination the witness becomes—for the time being—a State witness. The State is not entitled to go into new matter on cross-examination and thereby make the wife a witness for the State against her husband.” A great number of cases are cited in this proposition. Again he states the rule: “It is error to permit the State to go into new matter on cross-examination of the wife, either for the purpose of impeachment, or to draw out circumstances or statements adverse to defendant. Cross-examination is not a device by which the State is entitled to lay predicates as to matters about which she could not be cross-examined or contradicted, or to get before the jury her opinions of defendant’s guilt, or her apprehension of danger, or her hearsay statements as to new matter. Marsh v. State, 54 Texas Crim. Rep., 144 ; Merritt v. State, 39 Texas Crim. Rep., 70 ; Bluman v. State, 33 Texas Crim. Rep., 43 ; Hobbs v. State, 53 Texas Crim. Rep., 71 ; Gaines v. State, 38 Texas Crim. Rep., 202 ; Hamilton v. State, 36 Texas Crim. Rep., 372 ; Richards v. State, 53 Texas Crim. Rep., 400 .” The opinion by Judge Prendergast travels upon the theory that anything is legitimate if it proves or tends to prove the animus of a witness. Any legitimate testimony, of course, can be resorted to to show the animus of a witness. The mere statement of that proposition carries conviction of the truth without citation of authorities. But the animus of a witness, like any other matter in the case, must be proved bjr legitimate testimony.
Under the rule laid down by my brethren confidential communications even might be- used to show animus of the wife.
An inspection of the questions and answers in regard to impeachment of the wife by Mrs. Ollie Roberts shows not only new matter but a matter about which the witness ought not to have been interrogated or contradicted. This was the wife of the defendant and her feeling in the matter if it is as expressed by Mrs. Ollie Roberts might be imputed to her husband and doubtless was. The verdict was for twenty years. The State would not have been permitted to use this as original testimony, nor had the State the right to place her on the witness stand originally, but under the
guise of a cross-examination to show her .animus,
it is°used"as
impeaching
testimony. I do not purpose to follow this further. I simply state what I do in order that it may be understood I do not agree to the broad rule laid down by my.brethren which contravenes the statute and nullifies the sanctity of the relation of husband and wife. I can not believe that it ought to be held in Texas that the wife sustains the same relation on the witness stand to her husband that other witnesses do, or that she,sustains the same relation to the case on cross-examination by the State as .does the ordinary witness. To so hold abolishes the statute and overturns all those rules intended by our legislative department to protect to some extent at least the sanctity of the relation between husband and wife.
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There are other questions in the ease of more or less erroneous import, but it would be useless doubtless to discuss them. I think this judgment ought to be reversed and the cause remanded for another trial.
I respectfully make these few remarks by way of dissent.