Bryan v. State

• Decision Date: 23 June 1911
• Citation: 139 S.W. 981
• Parties: BRYAN v. STATE.
• Court: Texas Court of Criminal Appeals

139 S.W. 981

BRYAN v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1911.

Rehearing Denied October 11, 1911.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Philip Bryan was convicted of bigamy, and he appeals. Affirmed.

Lattimore, Cummings, Doyle & Bouldin and A. S. Baskett, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case appellant was indicted by the grand jury of Dallas county, charged with the offense of bigamy. Upon conviction his punishment was assessed at confinement in the penitentiary for a period of five years.

1. Appellant filed a motion to quash the indictment. The indictment follows the form by Mr. Bishop in his work on Forms (section 862), and is in accordance with the decisions of this court in McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627; Bryan v. State, 54 Tex. Cr. R. 18, 111 S. W. 744; Vinsant v. State, 42 Tex. Cr. R. 413, 60 S. W. 550.

2. The next question raised is that Juror Frank F. Sliger was a member of the grand jury that returned the bill of indictment against appellant. Appellant alleges in his bill that he did not learn this fact until after the jury had been sworn and impaneled to try the case, and he then called the court's attention to it, when the court asked appellant what he desired done in the premises, when appellant demanded that the entire jury impaneled be discharged. This the court declined to do, but again asked what they desired, when counsel replied: "We ask that the law be complied with." The court thereupon ordered the case to proceed. In the qualification of this bill it is shown that, on hearing the motion for a new trial, this juror was sworn and testified he was not with the grand jury at the time this bill was under consideration, and had never heard of the case. He was absent at New Orleans two weeks during the session of the grand jury, and this must have been one of the cases examined, bill found and returned during his absence.

As thus qualified this bill presents no error.

This is not a disqualification, but ground for challenge. The defendant examined the juror on his voir dire, and accepted him. When he learned that the juror was a member of the grand jury that returned the indictment, he did not challenge the juror individually, but only requested the entire panel be discharged.

Inasmuch as it is shown that the juror was not present when the case was considered and bill returned, no possible injury resulted to appellant. This question is treated at length in the case of Self v. State, 39 Tex. Cr. R. 455, 47 S. W. 26, in which it is held that this presents no ground for a new trial, in the absence of injury shown.

3. In his third bill of exception it is alleged that the jurymen talked over the telephone to some one after being impaneled on the jury. It seems some members of the jury talked to their families. In the qualification of the bill the court says: "On the motion for a new trial the evidence of these jurors and the members of their families was taken, and all they had done was let their families know they were on the jury." As thus qualified, the bill shows no error. In Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 873, 123 Am. St. Rep. 889, it is held that, where a juryman talks over the telephone, the burden is on the state to show no injury. The state in this instance assumes the burden and shows no possible injury. See, also, Speer v. State, 57 Tex. Cr. R. 297, 123 S. W. 415, and Parshall v. State, 138 S. W. 759, decided at this term of court, but not yet officially reported.

4. In his next bill of exceptions defendant complains that Minnie Robison was permitted to testify. Minnie Robison is the person appellant is alleged to have married while his first wife was living, and the contention is made that she should not have been permitted to testify until positive proof had been made that defendant was a married man and his wife living at the date of his marriage to Minnie Robison. Article 348 of the Penal Code provides that, in trials for the offense of bigamy, proof of marriage by reputation shall not be sufficient.

In construing this article of the statute, this court has held: Although general reputation alone is not sufficient proof of marriage, yet, taken in connection with the evidence of cohabitation and defendant's admissions, it is competent to support a conviction for bigamy, provided the jury is satisfied beyond a reasonable doubt of the fact of a valid marriage. Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241; Adkisson v. State, 34 Tex. Cr. R. 297, 30 S. W. 357.

The admission of the defendant that he is a married man and that his wife still lives is competent evidence against him. Gorman v. State, 23 Tex. App. 646; Boger v. State, 19 Tex. App. 91; Bell v. State, 33 Tex. Cr. R. 163, 25 S. W. 769.

T. M. Millican testified that he knew defendant and his first wife, and they had lived on an adjoining lot to him; that he knew defendant and his first wife before he married Minnie Robison; that defendant's first wife's maiden name was Laura Russey; that he knew her father, Dr. Russey; that at the time defendant married Minnie Robison he had a wife and five children; that the first wife was living three months prior to this trial and subsequent to the second marriage; that he had seen defendant at the home of his first wife subsequent to the marriage with Miss Robison, that is, at the home of the woman he had been living with as his wife; that he remembered hearing of the marriage of defendant to Miss Robison. About that time defendant had left his family. He was gone four or five weeks, when he appeared again. They were recognized in the community as man and wife. He testified he was at their home a number of times during appellant's sickness; that, after defendant was arrested charged with this offense and given bond, he saw him with his first wife at their home again, and he was around the place like a man generally is. On cross-examination he testified: "I know they were man and wife just like I know any other people are man and wife." Mrs. Millican testified that defendant's first wife was named Laura Russey prior to her marriage; that she knew her as Mrs. Bryan; that they had five children, and they had lived neighbor to her for 18 months; that she saw him frequently at the home of Mrs. Bryan after his arrest, charged with bigamy; that by general reputation she knows that defendant and Mrs. Laura Bryan are man and wife, and saw them living together in the same house; that she had seen Mrs. Laura Bryan about two...