Simon v. State , 31 Tex. Crim. 186 ( 1892 )

The grounds presented for a rehearing of this cause were not presented in the brief of appellant at the original hearing, nevertheless we have examined them with that degree of care and attention demanded by the importance of the questions involved and the standing and ability of the counsel so ably presenting them.

1. We do not agree with counsel, that the indictment is "fatally defective in alleging that defendant didunlawfully intermarry C. Budde, because it thereby failed to charge affirmatively that there was a marriage." The indictment is correct; it charged a marriage and that it was an unlawful one.

Nor do we think it is fatally defective because it fails to charge that defendant knowingly entered into an unlawful marriage with C. Budde. The statute (article 329, Penal Code) does not employ the word "knowingly" in defining incest.

One of the cases referred to by appellant construes a statute similar to ours, and holds directly against appellant's position. The State v. Bullinger, 54 Mo., 143. In this case the Supreme Court held it was not necessary that the indictment should charge that defendant knew that the person with whom he intermarried was in any way related to him. And indeed this is in consonance with the decisions of our own court and the ordinary rules of pleadings. Willson's Crim. Stats., secs. 111, 114, 1955.

Where, however, the statutory definition contains the word "knowing" or "knowingly," the rule is different. It then becomes the duty of the pleader to set forth in the indictment that the prohibited act was "knowingly" entered into. And to this effect are the cases cited in appellant's brief. Baumer v. The State, 49 Ind. 544, and Williams v. The State, 2 Ind. 439. See also Barker v. The State, 30 Ala. 531; Bergen v. The State, 17 Ill. 426; Hicks v. The People,10 Mich. 395.

2. Nor do we agree with counsel, that "the charge of the court is fatally defective in charging that if the jury believe that C. Budde is the daughter of a half-sister of defendant, they should find defendant guilty, because it is a charge on the weight of evidence, and tells the jury to convict if defendant married C. Budde and she was the daughter of any half-sister of defendant." It is not on the weight of evidence, because it did not assume that the mother of C. Budde was a half-sister of defendant. On the contrary, the charge distinctly left it to the jury to decide whether the relationship existed or not. The words are, "If C. Budde is a daughter of a half-sister of the defendant." Nor is the charge susceptible to the criticism that it authorized defendant's conviction if C. Budde was the daughter of any half-sister of defendant. There is no dispute or question in the evidence that C. Budde was the only daughter of Theresa Budde. The witnesses for State and defendant proved that fact, and the indictment alleged it. The charge must be looked at in the light of the evidence; and the jury could have understood nothing else from the charge in the light of the evidence but that the issue presented to them was the relationship between defendant and the mother of C. Budde, and not whether C. Budde was the daughter of Theresa Budde or of some other unknown half-sister of defendant.

The cases cited by appellant do not support his contention, for the reason that they simply assert that it is error for the court to charge on a phase of the case not made by the evidence.

3. Appellant contends that the introduction of the testimony of Louis Sitterlee, that he was informed by Theresa Budde, the mother of Carrie Budde, that the said C. Budde was the half-neice of defendant, and he so informed defendant a short time before his marriage, did great injury to defendant, and certainly authorized him to introduce the declarations ofhis deceased mother to rebut the declarations of the mother of C. Budde; that if it is against public policy to allow the mother to impeach her own chastity, that defendant should not have evidence introduced as to information to a different purport communicated by another who was not in condition to know.

The evidence of Louis Sitterlee was not objected to nor an exception reserved to its admission, nor was any motion made to strike it out; on the contrary, Mrs. Budde took the stand and denied the statement. What relationship was borne by the witness Sitterlee to the defendant or his family, other than being a friend, is not disclosed by the record. He was one of the guests who went from Victoria County over to Goliad, in company with the justice, to see the marriage. There were not many present. An hour before the marriage he told defendant, after being so informed by T. Budde herself, that he ought not to marry C. Budde, because she was his niece. His warning was disregarded. The evidence further shows, that defendant had been partially raised after the death of his father in his sister's (Mrs. Budde's) house. That no question of his legitimacy was raised until his ill-fated affection for his niece began, and then it appears to have been discussed. The father of C. Budde goes to visit the mother of defendant, and tells her that he understands that T. Simon is not related to his wife and daughter, and that it would be a serious thing for his daughter to marry her uncle, and that thereupon she gave him to understand that defendant was illegitimate and she would protect him from a criminal prosecution. Without further inquiry, and relying upon this indefinite statement, the marriage is allowed to take place. Defendant's mother died before the marriage, and such a conversation was sought to be introduced on the trial to rebut the family recognition and belief that existed from defendant's birth, and his own belief (for it does not appear that defendant himself ever heard to the contrary till he wanted to marry), and the presumption of wedlock as to children born therein. It seems, however, that the justice of the peace from Victoria who went across to perform the marriage contract, after talking with the parents of the girl, decided to perform the marriage, and did so, and defendant cheerfully accepted this decision and paid no attention to the warning of Sitterlee. Whatever weight the judicial action of the justice may have in a plea for executive clemency, it can have none before this court. And the trial court, as we held before, did not err in excluding said testimony.

The motion is overruled.

Motion overruled.