Hopson v. State, 12743.

• Decision Date: 27 June 1930
• Docket Number: No. 12743.,12743.
• Parties: HOPSON v. STATE.
• Court: Texas Court of Criminal Appeals

30 S.W.2d 311

HOPSON v. STATE.

No. 12743.

Court of Criminal Appeals of Texas.

June 27, 1930.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Riley Hopson was convicted of bigamy, and he appeals.

Reversed and remanded.

Bishop & Holland, of Athens, for appellant.

Sam B. Spence, Dist. Atty., and Geo. W. Anderson, Asst. Dist. Atty., both of Wichita Falls, and A. A. Dawson, State's Atty., of Austin, for the State.

HAWKINS, J.

Conviction is for bigamy; punishment being two years in the penitentiary.

The undisputed facts show that Louise Allison met appellant in Wichita county, Tex.; after a courtship lasting about two months he asked her in Wichita county, Tex., to marry him, to which she agreed; they went to Tillman county, Okl., just across Red river from Texas, and in Tillman county, Okl., they obtained a marriage license, and were there married by a Baptist minister on April 22, 1927, and the marriage license was returned and recorded; immediately after their marriage they returned to Wichita county, Tex.; they kept their marriage a secret for about two weeks, after which time they went to housekeeping and lived openly and professedly as husband and wife in said Wichita county, Tex. That appellant had a former wife then living is also without serious dispute.

Article 490, P. C., reads as follows: "Any person who has a former wife or husband living who shall marry another in this State shall be confined in the penitentiary not less than two nor more than five years."

It will be observed at the outset that our statute does not provide, as has been done in many states, that "the cohabiting together within this state, after a bigamous marriage elsewhere," is a specific criminal offense. The offense last mentioned is defined, and a penalty fixed in Alabama, Iowa, Massachusetts, Minnesota, Missouri, Tennessee, Vermont, and probably other states. See note 83, page 1163, vol. 7, Corpus Juris. Under the express terms of said article 490, P. C., and La Rose v. State, 29 Tex. App. 215, 15 S. W. 33, bigamy could not be predicated on the marriage by the minister because it did not take place "in this state." To avoid this predicament, the state contended—and, if this verdict and judgment stands, it must be by upholding such contention —that, by appellant and Louise Allison agreeing to take each other as husband and wife, said agreement, being evidenced in part by entering into the ceremonial marriage in Oklahoma, followed and supported by living and cohabiting with each other in Texas, and there publicly acknowledging the relation of husband and wife, constituted a common-law marriage in Texas, and upon this alleged common-law marriage is this prosecution for bigamy predicated.

It is unnecessary to discuss at length whether a common-law marriage will support a prosecution for bigamy. That question has been definitely settled in the affirmative by our own court in Burks v. State, 50 Tex. Cr. R. 47, 94 S. W. 1040. That case answers appellant's contention that a common-law marriage cannot be consummated where either the man or woman has another lawful spouse then living. See, also, People v. Brown, 34 Mich. 340, 22 Am. Rep. 531; People v. Mendenhall, 119 Mich. 404, 78 N. W. 325, 75 Am. St. Rep. 408. The validity vel non of the subsequent bigamous marriage is beside the point. All bigamous marriages are invalid because of a living spouse of one of the parties, regardless whether the bigamous relations are entered into by ceremonial or common-law marriage.

Appellant requested the court to instruct the jury to return a verdict of not guilty because the uncontradicted evidence showed that the bigamous marriage was entered into in Oklahoma and not in Texas; this the court refused to do. Appellant excepted to the ruling, and brings this point forward in bills of exceptions 1, 2, and 3. Upon the decision of this question the case must turn. While the courts generally have recognized that marriage is a civil contract which may be entered into by the parties without the formality of a ceremony, yet the law for good reason looks with more favor upon ceremonial marriages than it does upon what is usually termed common-law marriages. Many instances are found in the books where parties have entered into common-law marriages, and subsequently for various reasons—such as to comply with the conventions, or to place the legitimacy of children beyond question, or to make property rights more secure—have confirmed their former relations by a ceremonial marriage; but no case has come to the writer's notice where parties, having first entered into a ceremonial marriage, proof of which was available, have found it necessary or desirable to base their relations upon a subsequent common-law marriage. The crime of bigamy consists in contracting the second marriage, one of the contracting parties having a spouse then living; the offense is completed by said marriage, and, if the marriage be solemnized by a ceremony, cohabitation is not necessary to constitute the offense of bigamy. The parties may immediately separate after the second ceremonial marriage has been consummated, but would still be guilty of bigamy. See Bethany v. State, 91 Tex. Cr. R. 59, 237 S. W. 262. See Gise v. Commonwealth, 81 Pa. 428; Beggs v. State, 55 Ala. 108, and other authorities cited under Note 75, page 1162, vol. 7, Corpus Juris.

In the Bethany Case, supra, accused married the second wife in March, 1921, before securing a divorce from his first wife in June, 1921. He did not cohabit with the second wife until after the divorce was granted, after which he remarried her. We quote from the opinion written by Presiding Judge Morrow as follows:

"It is the theory of the defense that the marriage of the 14th of March, not followed by a cohabitation, does not satisfy the law defining the offense of bigamy, wherein it is said: `If any person who has a former wife or husband living shall marry another in this state,' etc. Penal Code, art. 481.

"In support of this theory, appellant and his wife testified that the minister who performed the ceremony omitted some of the usual formula, such as declaring them husband and wife, and their intent was not to enter into the marriage relation, but simply to bind themselves to do so when, at a subsequent date, the appellant, by the entry of the contemplated divorce decree, might be free to do so. It may be stated in this connection that the second marriage was performed by a minister at the request of the appellant. He presented a license regularly issued, which was duly returned by the minister, who declared in his testimony that the ceremony was regularly performed. This testimony supporting the verdict of the jury would be sufficient to conclude the appellant on the facts even if his defensive theory was a sound one. It is, in our opinion, however, not sound. The word `marry' used in the statute, as applied to the second marriage, does not mean a valid one. All bigamous marriages are void. Cyc. of Law & Proc. vol. 5, p. 693; Hooter v. State, 88 Tex. Cr. R. 265, 225 S. W. 1093. According to the testimony of the appellant and his witnesses, he obtained a license to marry, and the ceremony was performed by the minister. This, according to the authorities, completed the violation of the law. Corpus Juris, vol. 7, p. 1162, subd. 15, note 75."

The conclusion was very clearly expressed that the ceremonial marriage, although not followed by cohabitation, completed the violation of the law. If the marriage there entered into completed the offense of bigamy in Texas, a similar marriage entered into by appellant and Louise Allison in Oklahoma completed the offense in that state.

In State v. Ray, 151 N. C. 710, 66 S. E. 204, 205, 134 Am. St. Rep. 1005, 19 Ann. Cas. 566, may be found a case on the facts and law very similar to the one now before us. The statute of North Carolina had undertaken to supply the omission noticeable in our own statute, but, because of the wording, that particular provision had been held unconstitutional; therefore, at the time the Ray Case was decided, it was necessary for the bigamous marriage to occur in North Carolina, just as it is necessary under our statute for it to take place in Texas. Ray was living with his first wife in North Carolina; he separated from her, went into Virginia, and there entered into a ceremonial marriage with another woman, returned with her to North Carolina, where they lived together as husband and wife. The Supreme Court of that state said:

"Coming back into the state after a bigamous marriage elsewhere and a living together by the parties as husband and wife might, and ordinarily would, constitute the crime of fornication and adultery. State v. Cutshall, 109 N. C. 764, 14 S. E. 107, 26 Am. St. Rep. 599. But there is nothing in this statute which makes such conduct a felony, or which deals, or attempts to deal, with it one way or another; and the expression `or elsewhere'—that is, a bigamous marriage beyond the borders of the state—having been declared of no effect by the courts, because contrary to the law of the land, there is nothing in the statute which applies to the conduct of the defendant, and he is entitled to go quit of any further molestation by reason of any indictment predicated and necessarily dependent upon it. There are decisions in many of the states and by courts of recognized authority sustaining convictions by reason of conduct similar to that imputable to defendant on this evidence, or upholding statutes condemning it. Brewer v. State, 59 Ala. 101; Commonwealth v. Tompson, 2 Cush. (Mass.) 551; State v. Fitzgerald, 75 Mo. 571; State v. Palmer, 18 Vt. 570. But in the cases cited, and all others of like import so far as we have examined, the statutes in express terms made the `cohabiting together within the state after a bigamous marriage elsewhere' a specific criminal offense. Thus in the Missouri Statute (State v. Fitzgerald, sup...