Burton v. State

• Decision Date: 20 March 1907
• Citation: 101 S.W. 226
• Court: Texas Court of Criminal Appeals
• Parties: BURTON v. STATE.

101 S.W. 226

BURTON v. STATE.

Court of Criminal Appeals of Texas.

March 20, 1907.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

P. J. Burton was convicted of bigamy, and he appeals. Reversed and remanded.

Martin & George, Parker & Parker, and F. B. Standley, for appellant. F. H. Chandler and F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of bigamy, and appeals.

The facts, briefly stated, tend to show on the part of the state that appellant, who lived at or near Ft. Worth, was at the time buying cotton at Dublin in Erath county, and while there married a young lady living at that point; it being further shown that he then had a wife living at his home near Ft. Worth, whom he had married in the year 1896. The defense depended on the weakness of the state's case, and also set up insanity. The proof on this subject showed that appellant was subject to fits of some character, which began while he was yet a youth. These were periodic, and generally occurred on account of some undue excitement. At such times he was rendered unconscious, and while in such condition was irresponsible. The proof on the part of appellant, in this connection, tended to show that, while he was engaged in buying cotton at Dublin, he began paying some attention to a young lady by the name of Maggie Neel. These attentions, it appears, excited the suspicion of certain good people of Dublin, and they finally became so excited that, about the 2d of April, a mob of some 75 or 100 proceeded to the house where the young lady lived, about 10 o'clock at night, and called appellant, who was at the time visiting there, out to the front gate, and demanded to know his intentions with reference to the young lady, and insisted that he marry her, which he agreed to do, and they then became satisfied and retired. That night appellant procured a private conveyance, and proceeded with the young lady to Stephenville, where he married her. It is claimed the visitation of this mob of eager and zealous citizens so excited him as that it produced one of his spells that rendered him irresponsible for what he did in marrying the young lady. This is a sufficient statement of the case in order to discuss the assignments.

Appellant insists that bigamy, as defined by our statute (see article 344 of the Penal Code of 1895), does not constitute an offense. In this record he lays stress on the language "former wife or husband living," etc. Said article is as follows: "If any person who has a former wife or husband living shall marry another in this state such person shall be punished by imprisonment in the state penitentiary," etc. The contention is that the word "former" does not refer to the then wife at the time of the marriage, but to some other wife. It occurs to us this is hypercritical. The statute, properly construed, uses the term "former wife" in contradistinction to the person then being taken to wife; that is, if the man marry a woman, who has a wife then living, who is a former wife to the one then being taken to wife. We think this construction is in accordance with the rules of construction of criminal statutes as prescribed in our Code and by the authorities. There was no error in the state calling a former wife to the witness stand. She was not questioned, nor was any proof adduced from her. It was not even proved by her that she was appellant's wife. She was not sworn, and did not testify to anything. So the case does not come under the proposition announced in Moore v. State, 45 Tex. Cr. R. 234, 75 S. W. 497, 67 L. R. A. 499, 108 Am. St. Rep. 952.

During the trial, the state introduced before the jury a marriage license issued by J. P. King, county clerk of Tarrant county, authorizing the marriage of P. J. Burton and Miss Juanita Hoelzle, of date May 2, 1896, with the return thereon, as follows: "State of Texas, Tarrant County. This certifies that I joined in marriage, as husband and wife, P. J. Burton and Juanita Hoelzle on the 2d day of May, 1896. J. Morgan Wells, Pastor First Baptist Church." This was objected to by appellant on the ground that it was not shown to come from the proper custody; that there was no proof that J. Morgan Wells was a minister authorized to celebrate the marriage ceremony, and no proof that he executed same; that said purported marriage license is hearsay evidence; and that same is inadmissible, because same had not been filed with the papers of the cause three days before the trial, and notice thereof given to appellant. The court explains this by stating that the defendant was shown to have been the man to whom the license was issued; and, further, that, on the next day after the issuance of said license, appellant brought his wife to his mother's, and told her he had been married by J. Morgan Wells, and that his wife's maiden name was Juanita Hoelzle. There is only one point in the objection urged, which we will notice, and which in our opinion renders same inadmissible, to wit, that said marriage license was not filed with the papers of the case three days before the trial, and defendant given notice thereof. Whether this was the original copy of the marriage license, it occurs to us, would make no difference under the statute. This testimony, if admissible at all, as presented was admissible under the terms of our statute, as it did not prove itself outside of the terms of the statute, nor was its execution proven in connection with its being offered. A marriage license is an instrument authorized to be recorded by the county clerk. See Sayles' Ann. Civ. St. 1897, arts. 2958, 2312. The last-named article authorizes the introduction in evidence of the original or copies of recorded instruments, where otherwise pertinent under conditions therein named. We quote therefrom, as follows: "Every instrument of writing which is permitted or required by law to be recorded in the office of the county clerk of the county court, and which has been or may be so recorded after being proven or acknowledged in the manner provided by the laws in force at the time of its registration, shall be admitted as evidence without the necessity of proving its execution; provided, that the party who wishes to give it in evidence shall file the same among the papers of the suit in which he proposes to use it, at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party or his attorney of record; and unless such opposite party, or some other person for him, shall within three days before the trial of the cause, file an affidavit stating that he believes such instrument of writing to be forged," etc. Of course, it follows that the marriage license, with the return certificate thereon, being an instrument authorized and required to be recorded in the county clerk's office, and an instrument which does not prove its own execution, when it is proposed to be used in evidence, the terms of the statute must be complied with; the rule being the same in criminal as in civil cases. See Golin v. State, 37 Tex. Cr. R. 90, 38 S. W. 794; Allison v. State, 14 Tex. App. 402; Graves v. State, 28 Tex. App. 354, 13 S. W. 149; Williams v. State, 30 Tex. App. 153, 16 S. W. 760; Johnson v. State, 9 Tex. App. 249; and Lamar v. State, 95 S. W. 509, 16 Tex. Ct. Rep. 394.

It will be seen from these cases that this doctrine has been extended to every character of instrument, which is required to be placed on record in the county clerk's office, which has come before this court; the last-named case applying the doctrine to the charter of a municipal corporation, which is...