Jones, Alias v. State , 112 Tex. Crim. 470 ( 1928 )

From Bill of Exceptions No. 4 we learn that the appellant offered in evidence a certified copy of the marriage certificate issued by the county clerk of Harris County on February 6, 1919, authorizing the marriage of S. A. Jones and Miss Freda Treppke, also the return on the marriage license showing that the ceremony was performed by Leon Lusk, Justice of the Peace, Precinct No. 1, Harris County, Texas. The certified copy was duly authenticated by the county clerk of Harris County on the 18th day of June, 1926, and bears the indorsement that it was filed in the District Court of Hale County on the 4th day of February, 1927. Notice of the filing in the District Court of Hale County in the case of the State of Texas v. S. A. (Gus) Jones was given in writing and served upon the district attorney on the 4th day of February, 1927. On the same day there was filed in said cause the affidavit of the appellant of his inability to procure the original instruments. The marriage certificate was rejected upon the State's objection. In qualifying the bill of exceptions the trial judge states that at the same time the certificate mentioned was offered in evidence there was also offered by the appellant a certificate showing the marriage of South A. Jones and Miss Ester A. Davis upon a license issued on the first day of July, 1926, by the clerk of the County Court of Dallas County and executed on the 3rd day of that month. The ground of the objection is not stated either in the bill or by the court, but as understood by the writer, the court's reason for excluding the testimony mentioned was the opinion of the trial judge that in the absence of testimony other than the identity of names, the law did not authorize the reception of the instruments in evidence notwithstanding the identity of the names. Where the statute (as is the case in this state) requires the return of the registration of the marriage certificate attested by the officiating minister, a proper manner of proof is by a copy of the records. It is a general rule that wherever there is a duty to record official doings the record thus kept is admissible in evidence. See Wigmore on Evidence, 2nd Ed., Vol. 2, Sec. 1339; also Vol. 3, Sec. 1639, and Secs. 1632-1633. The application of this rule to the record of marriage certificates is uniform throughout the country. Wigmore on Evidence, supra, Sec. 1642. See also Wharton's Crim. Ev., 10th Ed., Vol. 2, Secs. 533, 535 and 536a; Underhill's Crim. Ev., 3rd Ed., Sec. 605; Baker v. State, 56 Tex.Crim. Rep.; Bryan v. State, 63 Tex. Crim. 200; Edwards v. State, 73 Tex.Crim. Rep.; Harris v. State, 74 Tex.Crim. Rep.. In Texas the registration of marriage certificates is required by law. Revised Civil Statutes, Art. 4606 (old statutes, Arts. 4612, 2958, 2842). Certified copies of instruments properly recorded in pursuance of statutory demands are declared admissible in evidence where the original would have been admissible. R. S., Art. 3720. In Art. 3726, R. S., 1925, it is declared that a certified copy of such an instrument shall be admissible in evidence provided it be filed among the papers in the case three days before the trial begins and that the party offering it shall file among the papers of the case an affidavit showing that the original cannot be procured. (Old statute, Arts. 3700, 2312). Compliance with the registration statutes is essential to the admissibility of the copy. Burton v. State, 51 Tex. Crim. 198; Bryan v. State, 63 Tex.Crim. Rep.; Harris v. State, 161 S.W. Rep. 125; Huehn v. State, 69 S.W. Rep. 526.

State's counsel contends that the language of Art. 3726 (formerly Art. 3700, R. S.) as it appears in the Revised Statutes of 1925, is to be construed as referring to no recorded instruments save those which have been recorded for a period of ten years. The language of the statute is somewhat involved. In it, however, is found in a separate clause the same language that was embraced in Art. 3700, R. S., 1911, as follows:

"And, whenever any party to a suit shall file among the papers of the cause an affidavit stating that any instrument of writing, recorded as aforesaid, has been lost, or that he can not procure the original, a certified copy of the record of any such instrument shall be admitted in evidence in like manner as the original could be."

If it be granted that the interpretation of the statute by State's counsel is correct, it does not follow that a duly certified copy of the record of a marriage certificate is not to be received in evidence. It having been made a public record by Art. 4606, its admissibility is established by the terms of Art. 3720, supra. Correction of the error in Art. 3726 in the revision of 1925 was made by the 40th Legislature, 1st Called Session, Chapter 73, which was after the trial of the present case. In some cases it has been held that the registration of the marriage certificate in another state was not sufficient proof of the marriage in the absence of proof of the identity of the parties. Goad v. State, 51 Tex.Crim. Rep.; Rogers v. State, 83 Tex.Crim. Rep.. Whether such an announcement would be proper touching the marriage certificate and showing the marriage ceremony performed in this state it is unnecessary to discuss. Moreover, the sufficiency of the evidence is not the legal question involved in the present appeal but whether a certificate of marriage duly registered, filed among the papers and notice given as required by the statute, is to be held inadmissible in the absence of proof by way of predicate of the identity of the parties. For such a conclusion we are aware of no precedents. On the contrary, the opposite rule has been definitely announced by the unanimous opinion of this court in the case of Bryan v. State, 63 Tex. Crim. 200; 139 S.W. Rep. 982. The court in holding such a certificate admissible against the accused used the following language:

"It is true no witness had been introduced to show that defendant was the identical person named in that marriage license; but this went to its weight, and not its admissibility."

The announcement, to the writer, seems in accord with reason, is deemed sound and seems in harmony with the views of text-writers as indicated by the citations above and by the courts of other states as is illustrated in the cases found in Corpus Juris, Vol. 7, p. 1173, note 44. At least, there has come to our attention no instance in which where the admissibility in evidence of a certified copy of the marriage certificate accompanied, as in the present case, by the statutory predicate touching the filing and notice, has been conditioned upon the further predicate of proof of identity of the parties. The admissibility of the certificate seems clear. The identity might come from subsequent direct proof or from circumstances appearing throughout the evidence from which the jury might draw the inference of the identity. The pertinency of the reference in the court's qualification to the fact that at the time the appellant offered the certificate in question in evidence he offered also another certificate showing the marriage of one Jones to a different woman and at a different time from that named in the certificate under discussion is not appreciated. It is difficult to perceive how the fact that one of the certificates was not accompanied by the proper statutory predicate showing filing and notice would justify the exclusion of a certificate relevant, properly authenticated and offered under the required predicate. Nor is the pertinency of the remark in the judge's qualification that if in fact there were other marriages that they might have been proved by the defendant comprehended. He was within his rights in introducing the certificate which has been under discussion as one of the elements of proof of a previous marriage, and in denying this right the learned trial judge, in the opinion of the writer, fell into error which makes it incumbent upon this court to order a reversal of the judgment.

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

Reversed and remanded.