Gorman v. State

• Decision Date: 01 January 1859
• Citation: 23 Tex. 646
• Parties: ASA K. GORMAN v. THE STATE.
• Court: Texas Supreme Court

23 Tex. 646

ASA K. GORMAN

v.THE STATE.

Supreme Court of Texas.

1859.

On an indictment for unlawful marriage, the jury may presume, from the facts and circumstances of the case, that the first wife was living at the time of the second marriage. There is no artificial rule that requires this to be proved by direct evidence.

Proof that the first wife was living, from five to six months previous to the second marriage, the admission of the defendant that he had two wives, and the failure on his part to offer any rebutting evidence, authorize the jury to presume, that the first wife was living at the time of contracting the second marriage.

APPEAL from Nacogdoches. Tried below before the Hon. A. W. O. Hicks.

This was an indictment for unlawful marriage. The facts are stated in the opinion.

Thomas J. Jennings, for the appellant.

Attorney General, for the appellee.

ROBERTS, J.

Both marriages were fully established, as alleged. The first one, with Louisa Shack, in the state of Mississippi, on the 10th of April, 1857, and the second, with Elizabeth Jane Cleaveland, in Nacogdoches county, in this state, on the 1st day of October, 1857. One of the witnesses states, that he saw Gorman and his wife Louisa together, once or twice, in Mississippi, after their marriage, and that he came with witness to this country, the 1st of June, 1857. None of the witnesses had seen Louisa, during a period of at least four months before the second marriage; but a month or two after the second marriage, Gorman confessed that he had two wives, one in Mississippi, and one here.

The jury having found the defendant guilty, it is now contended that the verdict was unauthorized, because it was not sufficiently proved that Louisa was alive at the date of the second marriage; that though the admission of Gorman might embrace that fact, it was evidently unknown to him at the time he made it, Mississippi, where she was left, being 300 miles distant; and that, there being no positive or direct testimony of her being alive at the date of the second marriage, the jury were not warranted in presuming that fact, from her being proved to have been alive four or six months before that time; that the presumption of innocence outweighs the presumption of the continuance of life for a year, a month, or a day.

Greenleaf, in treating of this offense, says: “There must also be proof that the first husband, or wife, was living, at the time of the second marriage. And, for this purpose, it is said, that the mere presumption of the continuance of life is not sufficient, without the aid of other circumstances, though seven years have not expired since the last intelligence was had, in regard to the absent person.” 3 Greenl. Ev. § 207. This rule is announced with a caution, by the use of the terms, “ it is said,” as perhaps indicating a want of full assent to its correctness. The case relied on, for its establishment, is Rex v. Twyning, 2 Barn. & Ald. 386. Chitty and Starkie announce the same rule, upon the same authority. This case came under review in the court of king's bench, in a subsequent case, in which the extent of the rules established by that case, was fully discussed, both by the bar and bench, when it was held, that that case did not establish it as a rule of evidence, that a jury was not authorized to presume the...