Curtin v. State , 155 Tex. Crim. 625 ( 1950 )

ON appellant’s motion for rehearing.

GRAVES, Presiding Judge.

Appellant alludes to the citation of Hupp v. Hupp, 235 S.W. (2d) 753, which case was cited by us in the opinion granting the state’s motion for rehearing and affirming this cause. In that case the Court of Civil Appeals at Fort Worth, Texas, in the opinion by Chief Justice McDonald, had the following to say:

“A putative marriage based on a common law marriage relationship was sustained in Lawson v. Lawson, 30 Tex. Civ. App. 43, 69 S.W. 246, writ refused, and the Supreme Court cited Lawson v. Lawson, without a hint of criticism, in Barkley v. Dumke, 99 Tex. 150, 87 S.W. 1147. The opinion in the latter case refers to the fact that Smith v. Smith was decided under the rules of the Spanish law, and not under the laws prevailing after Texas adopted the provision of the common law in 1940. Although the precise question now under consideration is not expressly discussed in the opinion, the court in Eaton v. Eaton, Tex. Civ. App., 125 S.W. 2d 624, apparently thought that a claim of putative marriage could be based on a common law marriage.”

It is the contention of the appellant that the cases cited do not bear out the statement made in Hupp v. Hupp, supra, that is, that a putative marriage can be based upon a common law marriage.

In the first place, we do not think that the objections to the court’s charge correctly called this matter to the court’s attention; and in the second place, if called to the court’s attention, we think the court’s charge was a proper and legitimate exposition of the law.

There are many different conditions that would allow a putative marriage to ripen into a legitimate union of the parties, as for instance, that laid down in Corpus Juris Secundum, Vol. 55, pages 881-882, wherein it is said:

“The doctrine that an invalid marriage contracted in good faith, followed by cohabitation as husband and wife after the removal of the impediment to the marriage, constitutes a valid common-law marriage has been applied where the impediment to the marriage was a subsisting marriage of one of the parties, and such marriage was terminated by death or divorce; where the impediment was a judicial decree or statute forbidding marriage within a specified time after divorce, and the parties cohabited after the expiration of the specified time; or where the impediment was a disease rendering a party incompetent to marry and the disease was subsequently cured. The doctrine applies whether the initial marriage was a ceremonial or an informal, common-law marriage, although a ceremonial marriage has been held to be significant as indicating that the parties intended a matrimonial and not a meretricious, relationship.”

We are of the opinion that the statement made in Hupp v. Hupp, supra, received the approval of the Supreme Court of Texas in that the writ of error was refused therein, no reversible error having been found. We are also of the opinion that a marriage is a marriage in Texas, either at common law or when ceremonially observed, provided the parties are free to contract. If one party is not free to contract but such inhibition is not known to the other party and he enters into a contract fairly, such becomes a putative marriage. The woman is a putative wife and her children born therefrom are legitimate children.

We see no need to further discuss this matter. We think the court was correct when he instructed the jury on a ceremonial marriage, also on common-law marriage, as well as a putative marriage. We also think he was correct when he further charged that under the law of this state a putative marriage may arise out of a .common-law marriage or a ceremonial marriage. We think the charge is a fair presentation of the law and see no reason for granting this motion.

The motion for rehearing is therefore overruled.