McDougal v. State , 81 Tex. Crim. 179 ( 1917 )

Concurring with Judge Morrow in the reversal of this judgment, I desire to make a few general observations with reference to the introduction of the statements of appellant's wife. The question presented is this: was her statement one of fact or one of conclusion or opinion based on some known facts, or formed and reached without facts? If it was an opinion from either viewpoint it was clearly inadmissible. If her statement was the result or conclusion of statements made to her by her husband, those statements, if admissible, should be produced and not the conclusion from the statements. This, of course, would result in excluding a conclusion or opinion by the witness from such facts, or want of facts. The statement of these propositions ought to be self-evident; that is, if the facts exist, being permissible, should be introduced and not the opinion formed from such facts, or if there be no facts, then the conclusion would not only be an opinion, but would be hearsay, and opinion without foundation. If there are no facts upon which to predicate the opinion, it is equally self-evident that the opinion could not be admissible. The statement imputed to Mrs. McDougal excludes every idea except that of conclusion or opinion. What operated upon her mind to form the conclusion was not stated. Her statement or conclusion was that appellant killed deceased because deceased had sued him. There must have been some fact inducing such conclusion. What was it? Whatever it was was not given nor stated by her, nor was she asked about it. The witness only stated her conclusion. The jury was entitled to know the facts, if any existed, and not the opinion of a witness. If her conclusion was reached by any communication made by her husband, this would come within the interdiction of article 794, C.C.P., prohibiting the use of confidential communications. She could not be even cross-examined about such confidential communications. This would lead necessarily to the proposition that she could not be impeached so far as this phase of the matter is concerned. Confidential communications are placed by our statute as being within the Holy of Holies of the law and the family circle, to be rigidly upheld. The family is the basic foundation of our civilization and government, and no invasion should be permitted as to this sacredness. Any statement made by the husband to the wife can not be used under the terms of article 795, C.C.P., if incriminating, for this would be making her a witness as to such confidential matters and statements. The question of the testimony of other witnesses as to conversations between husband and wife heard by them is not here discussed, nor is it involved so far as the record shows. The wife is not to be classed as a third party. If her statement was but an opinion or conclusion, it was error to admit the statement. This was conceded and so held in the opinion on the former appeal as found in 79 Tex.Crim. Rep., 185 S.W. Rep., 15. But that opinion upheld the ruling of the trial court upon the theory that it was legitimate cross-examination of the wife. In the light of further reflection I am persuaded the former opinion on this question was erroneous, ought not to have been so rendered, and should not now be upheld as the law under the facts of this case. The relation of husband and wife existed. She testified at the instance of her husband to facts and circumstances attending the difficulty which ended in the killing. After the killing she was asked but denied making the statement that her husband killed deceased because deceased had sued her husband. This was not germane to her testimony given as to the incidents of the fatal difficulty, but if it was and was formed on confidential statements to her, still the statute would interdict the use of such statements, much less could her opinion be given. The State could not use such evidence as incriminating. If her husband killed on account of the lawsuit, it would tend to show on his part a motive, and, therefore, would or might impair his defensive theories of the killing. She, as before stated, was not asked about any facts upon which her conclusion was reached or her opinion formed. What these facts were, if any, was not disclosed by the questions or the answers. If her husband made statements they could not be used, and, therefore, for much stronger reasons her opinion or conclusion could not be introduced in evidence: First, because they were confidential communications; second, if she obtained the information from others, her conclusion would be an opinion formed upon hearsay, and, therefore, inadmissible; third, being incriminating, they would be interdicted and inadmissible because coming from the wife; fourth, if legitimate the facts should be given and not her conclusion resulting from the facts, nor her opinion stated from such facts, or information from others; fifth, the propounded question itself assumes as a predicate facts which are not stated and about which inquiry was not made; sixth, the impeaching answer verified the fact that it was but her conclusion or opinion predicated either upon known and undeveloped facts, or upon hearsay statements, even if she made the statement imputed to her; seventh, realizing the solemnity of adjudication of questions, I further realize the more important fact that it is far better to overrule erroneous opinions than to let them stand as a menace to the law and to our statutes and jurisprudence. Such opinions are always dangerous when they lead to erroneous punishment and this from any viewpoint, but when they lead to substituting opinions of witnesses for the facts and takes away from the jury their province to decide upon the facts, it becomes a menace to the liberty of our people, but when this uncovers the relation of husband and wife and breaks down that sacred bulwark it becomes subversive of the foundation stone of society as well as the law and substitutes opinion of witnesses for facts and jury trials. Even where there is a doubt of facts the doubt should be resolved in favor of the sanctity of the home inhering in the marital relations. Doubt of fact or law favors the presumption of innocence, and this by statute and the fundamental principles pertaining to criminal trials. This is true in regard to the proposition generally stated, but when it goes further and undertakes to invade the home circle and tear down its inherent sanctity, then it becomes more than serious.

I also wish to concur in the reversal of this judgment on account of the misconduct of the jury as shown by the motion for new trial and evidence in support of it, and stated by Judge Morrow in his opinion. In view of the fact he has so fully and conclusively reviewed the question I deem it unnecessary to add anything to what he has said, but simply add this by way of concurrence. He has reached the correct conclusion of the law applicable to the state of case presented by the record, and has rightly decided the case on that question. It is unnecessary for me to say more than the above or write further, but I cite the following as some of the cases fully sustaining Judge Morrow's opinion: Lankster v. State, 43 Tex.Crim. Rep.; Hughes v. State, 43 Tex.Crim. Rep., and citation of authorities in both cases; Hughes v. State, 44 Tex.Crim. Rep.; Banes v. State, 43 Tex.Crim. Rep., at page 498; Tutt v. State,49 Tex. Crim. 202; Clements v. State, 69 Tex. Crim. 369.