Tucker v. State

Appellant complains in his motion because of the fact that he thinks this court, in its original opinion, misread and misunderstood the trial court's qualification to his exceptions and objections to the court's charge in that the trial court said, in substance, that after he had amended the charge in the light of appellant's objections, then the appellant had no further objections thereto. We think the decisions quoted in the original opinion mean that in the event of certain objections having been made relative to the court's charge, in the event of the trial court's amendment thereto, it is also obligatory upon the part of appellant that he again level his objections to the amended charge, otherwise such objections will be waived.

The main contention in such objections to the court's charge was based on the fact that the trial court failed to instruct the jury that the deceased was the wife of appellant at the time of the fatal difficulty, and that a decree of divorce theretofore rendered between the appellant and the deceased was void, upon the grounds that the deceased had not resided in the forum of the divorce case trial a sufficient length of time in order to entitle her to file a suit for divorce therein. An effort to have this divorce declared void in this criminal proceeding was a collateral attack thereon. We think that this judgment is but voidable at least, and can only be declared to be of no effect in a direct attack thereon. It is not a jurisdictional matter as to the time of residence of the plaintiff in the court of trial. The Supreme Court in Aucutt v. Aucutt, 62 S.W.2d 79, in an opinion by Justice Critz, held that:

"Under the above construction of article 4631, we hold that it is not a jurisdictional statute at all, but merely a statute prescribing the qualifications of the plaintiff in divorce cases. The plaintiff must possess the qualifications prescribed by article 4631 before he is entitled to prosecute a divorce suit in the courts of this state."

To the same effect is an opinion by Justice Monteith in the case of Prendergast v. Prendergast, 122 S.W.2d 710.

In other words, it is held that the matter of plaintiff's continuous residence is not a jurisdictional matter, but that the statute, Art. 4631, Vernon's Civil Statutes, merely prescribes certain qualifications of the plaintiff in order that the suit might be brought.

It is also worthy of note that appellant signed a written waiver of service of citation in the deceased's divorce case filed in Tarrant County, and entered his appearance therein. We do not think he could attack the validity of that divorce decree entered in said cause in Tarrant County in this criminal proceeding.

We see no reason to recede from our holding in the original opinion, and this motion is therefore overruled.