Waldrop v. State , 41 Tex. Crim. 194 ( 1899 )

Appellant was convicted of bigamy, and his punishment assessed at five years confinement in the State penitentiary.

Appellant's first bill of exceptions complains of the failure of the court to give the following special charge: "In order to warrant a conviction in this case, the evidence must establish in your minds, beyond a reasonable doubt, the existence of the fact of the first valid marriage. A valid marriage is one which has been solemnized according to the mode and manner, and in accordance with the prerequisites, which the law of the place where solemnized has required." And in bill number 2 he complains of the failure of the court to give the following charge: "A valid marriage is one which has been solemnized according to the mode and manner, and in accordance with the prerequisites, which the law of the place where solemnized has required." We will consider these two bills together. Appellant cites Dumas v. State, 14 Texas Criminal Appeals, 472, in support of his contention, and a portion of that opinion does seem to do so; but, construing the opinion as a whole, we do not think the authority supports the position of appellant. We quote the following from the opinion of the court in that case, which we think settles the controversy against appellant's contention, to wit: "It appears to us to be well settled from these authorities that general reputation, cohabitation, and admissions or confessions of the party are all admissible evidence of the fact of the first marriage. General reputation alone is insufficient, but, taken in connection with cohabitation and admission, is competent evidence to establish a prima facie case sufficient to sustain a verdict and judgment of conviction for bigamy. Whenever such evidence establishes in the minds of the jury, beyond a reasonable doubt, the existence of the fact of valid first marriage, then it is sufficient in that regard to sustain a verdict and judgment for bigamy. But, as stated in the outset of this opinion, a valid marriage must be proven, and, if such evidence is relied upon, it must establish the existence of a valid marriage to the satisfaction of the jury, beyond a reasonable doubt." Again, in the case of Holder v. State, 35 Texas Criminal Reports, 23, the following language is used: "Upon the trial he proved that said Roberts was not an ordained minister of the gospel at the time he performed the marriage ceremony. This fact being established, he contends this marriage was a nullity, and therefore his second marriage was legal; hence, he was not guilty of adultery in living with the woman to whom he was married in 1892. The fact that Roberts was not an ordained minister does not render the first marriage a nullity. Simon v. State, 31 Tex.Crim. Rep.; Foster v. State,31 Tex. Crim. 409. * * * Justice Strong, for the Supreme Court of the United States, quoting Greenleaf on Evidence, says: ``Though in most, if not all, the United States, there are statutes regulating the celebration of marriage rites and inflicting penalties on all who disobey the regulations, yet it is generally considered that in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute regulations, would still be a valid marriage.' Meister v. Moore, 96 U.S. 76, 80. Such statutes are merely directory. Marriage is a civil contract, and is a thing of common right, — so recognized by all civilized countries in all ages, — and is encouraged by public policy. A rule of construction as contended for by appellant would bastardize children whose parents believed they were legally married, and who were not conscious of violating any law, human or divine, and who believed that they had entered into the marital relation without coming in conflict with the provisions of statutory enactments. * * * We can not agree to such a rule of construction. Our statute does not render null, or prescribe penalties against, marriages not entered into under the terms thereof. This view was entertained, and so held, by the Court of Civil Appeals, at Dallas, in a recent able and exhaustive opinion delivered by Lightfoot, C.J., in the case of Ingersol v. McWillie (Texas Civil Appeals) 30 Southwestern Reporter, 56." We therefore do not think the court erred in failing to give either of such charges complained of in his bills of exception.

Appellant's third bill of exception is as follows: "The State offered to prove by the witness A.M. Nabors declarations made by the justice of the peace while performing the alleged first marriage ceremony between defendant and his alleged first wife, in Morgan County, Alabama. Defendant objected to said testimony for the reasons that the declaration made by the justice of the peace at that time was hearsay, and because there was no competent evidence that the purported justice of the peace, whose name was Ryan, was in fact a justice of the peace of that State, county, and precinct, nor that the justice of the peace in that State had any authority to solemnize the rites of matrimony or perform a marriage ceremony, and was therefore illegal evidence. The court overruled the objection of defendant, and permitted the witness to testify that the said justice of the peace in performing the ceremony stated that he did so by virtue of the authority vested in him by a certain paper held in his hand, the contents of which, and the authority of which, were unknown to the witness," etc. The court appends the following explanation to this bill: "That the witness Nabors had stated without objection that Ryan was justice of the peace of the precinct in which the marriage was consummated, and it further appeared from the evidence that the declarations of the justice were made in the hearing of, and in the presence of, the defendant; and with this explanation this bill is approved," etc. In the case of Simon v. State, 31 Texas Criminal Reports, 186, on the question of proving a valid marriage in criminal law, we find the following language: "All that can be required in any case involving marriage is proof of a valid marriage, for the violation of which the parties thereto may be punished. Whatever be the form of the ceremony, or if there be no ceremony, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage, binding on the parties, which would subject them to legal penalties for a disregard of its obligations." We do not think it necessary to review this question further. The authorities clearly authorize the admission of the testimony complained of by appellant, especially in view of the explanation of the judge to the bill of exceptions, wherein he says that the declaration of the justice of the peace was made in the presence of the defendant, and the witness was purporting to detail the circumstances and facts under which appellant and his former wife were married.

In his fourth bill appellant urges as error the action of the court permitting the witness E.G. Glasson to state the number of children born to appellant and Ludie Glasson, the alleged second wife of defendant. In State v. Jenkins (Missouri), 41 Southwestern Reporter, 220, the court sustained the lower court in permitting proof of the birth of children as evidence of marriage. We think that it was proper for the court to permit such proof in this case. We do not see how it could or did injure the rights of appellant. After a careful examination of the record before us, we find no error in the same, and the judgment is affirmed.

Affirmed.