Dill v. State

Citations

• 1 Tex. Ct. App. 278

Syllabus

<p>1. Jury—Talesmen.—When, after a special venire has been exhausted, talesmen are to be summoned to complete the jury, the judge is not required by the Code to caution the sheriff to summon only such persons as are legally qualified to serve as jurors, informing the sheriff what the qualifications are. This duty is enjoined on the judge when he orders the special venire, but not with respect to talesmen; yet in capital cases it is well for the judge to give the caution, whether asked to do so or not.</p> <p>2. Evidence.—Article 648 of the Code of Criminal Procedure (Pase. Dig., Art. 3113) has not abrogated that rule of the common law which disqualifies husband and wife from testifying against each other except in cases of personal injury inflicted by one upon the other; and this rule disqualifies either of them as a witness against a co-defendant of the other, jointly on trial with him or her.</p> <p>8. Same.—B., D., and R. were jointly indicted for murder, and jointly put on trial. In the course of the trial a nolle prosequi was entered as to B.,. and he was examined as a witness for the state; but prior to the nolle prosequi his wife was allowed to testify for the state, over objection by her husband’s co-defendants. Held, that she was not a competent witness for the state at the time she was examined, and the subsequent nolle prosequi did not cure the error committed in admitting her testimony. Had the nolle prosequi been entered before she was offered as a witness for the state, her testimony would have been admissible against the defendants still on trial.</p> <p>4. Pleading.—When there is uncertainty as to the mode in which a homicide was committed, it is good pleading to frame the indictment with as many counts as are deemed necessary to meet the evidence; and the district attorney should not be required to elect on which count he will1 proceed to trial.</p> <p>6. Evidence—Corroboration oe an Accomplice.—The wife of an accomplice is a competent witness to co