Clinnard v. State ( 1945 )

In his motion for rehearing appellant stresses the omission of the trial court to charge on circumstantial evidence. The point was raised by timely objection to the charge, but was not briefed, and, therefore, was overlooked in considering the case originally.

It is necessary to prove the first marriage, and that the wife of that marriage was living when the alleged bigamous marriage was entered into. Each are equally material. Harris v. State, 72 Tex.Crim. R., 161 S.W. 125 is authority on the proposition that if the first marriage is proven by circumstances a charge on circumstantial evidence is called for. Likewise, we are of opinion if the fact that the first wife was living when the bigamous marriage took place is proven by circumstances a charge on circumstantial evidence is called for. The facts of the present case bring it within the rule.

The motion for rehearing is granted, the opinion of affirmance is set aside, and the judgment of the trial court is reversed and the cause remanded.

ON STATE'S MOTION FOR REHEARING.