Curtin v. State, 25015
Decision Date | 13 December 1950 |
Docket Number | No. 25015,25015 |
Parties | CURTIN v. STATE. |
Court | Texas Court of Criminal Appeals |
Bullington, Humphrey, Humphrey & Fillmore, Wichita Falls, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
WOODLEY, Commissioner.
Appellant was convicted for the wilful neglect and failure to support his three children under 16 years of age, an offense defined by art. 602, P.C., Vernon's Ann.P.C. art. 602. The jury assessed the maximum punishment of two years in the penitentiary.
The defense was predicated upon the claim that appellant was never married to the mother of the children, and that if he was in fact their father, they were not his legitimate offspring.
The trial court recognized such as a defense, and properly instructed the jury that in order to convict appellant they must first find beyond a reasonable doubt that the children were the legitimate children of appellant. See Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929, 30 A.L.R. 1073.
Appellant challenges the sufficiency of the evidence to support the jury's finding that the children named in the indictment were his legitimate children.
The State's witness Margaret Curtin, the mother of the children, testified on direct examination that she was married to appellant on January 28, 1931, at Walters, Oklahoma, in a ceremonial marriage; that they returned to Wichita Falls and lived together as man and wife until 1949. That five children were born of their union, a girl 18, a boy 17, and the three children named in the indictment, Marjorie 15, Iona 11 and Ronny 6 1/2 years of age.
On cross examination, however, she testified in part as follows:
'In 1937, when he introduced me as his wife, he was supposed to have had everything cleared up, so he told me.'
'In 1934, when I found out he was a married man, he asked me not to say anything about it because I didn't want him to get in trouble as a bigamist.
'After we married in 1931, we had intercourse and we never had another ceremony; never went before a justice of the peace; I just kept on living with him after January 28, 1931 outside of the time we separated over Allene, and he did say he would go ahead and get things straightened up.
On redirect examination the witness testified:
And being recalled by appellant, the witness further testified:
There was other evidence offered by the State to the effect that appellant had recognized the children as his own and had introduced the mother as his wife.
Appellant denied this and denied that he had at any time gone through a marriage ceremony or contracted any character of marriage with the mother of the children. He offered witnesses who testified that they never heard of him being married by any one except Allene Richardson.
Appellant testified that he married Allene Richardson on September 5, 1925, and lived with her until 1930 when they separated. That this marriage relationship continued until a divorce was obtained by the wife in 1938. Certified copies of the divorce decree and of the marriage license and return were offered in evidence showing the marriage on September 5, 1925, and its dissolution by divorce on December 8, 1938.
The court defined 'Legitimate Children' as follows:
'Putative Marriage' was defined as:
'You are further charged that under the law of this State, a putative marriage may arise out of a common law marriage or a ceremonial marriage, and when and if said impediment is removed, and the parties continue to cohabit and live together as man and wife, and hold themselves out as such, said marriage becomes a lawful marriage at the time of the removal of such impediment, whether the removal of said impediment is known or unknown to the parties.'
The court should not have submitted to the jury the law with reference to a putative marriage and the issue thereof, the evidence not raising such issue.
Neither of the children named in the indictment as having been neglected were shown to have been born or conceived during the time from 1931 until 1934, while the mother remained in ignorance of the impediment to their marriage. The status of...
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