Lynn v. State

• Decision Date: 20 November 1929
• Docket Number: (No. 12711.)
• Citation: 21 S.W.2d 1042
• Parties: LYNN v. STATE.
• Court: Texas Court of Criminal Appeals

21 S.W.2d 1042

LYNN v. STATE.

(No. 12711.)

Court of Criminal Appeals of Texas.

November 20, 1929.

Commissioner's Decision.

Appeal from District Court, Polk County; J. L. Manry, Judge.

G. A. Lynn was convicted of bigamy, and he appeals. Reversed and remanded.

Campbell & Murphy, of Livingston, and J. J. Collins, of Lufkin, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

It was shown for the state that appellant married Miss Hazel Light in Red River county in the year 1923. Thereafter, without being divorced from her, he married Miss Vivian Jones in Polk county in September, 1927. Appellant testified that, after his marriage in Red River county to Miss Light, he lived with her for a short time and they separated; she agreeing at the time to procure a divorce, and he furnishing her the money for the expense of same. Further he testified that she had written him that she had procured the divorce, after which he married the second time. He also showed by other witnesses that he had been informed that she had procured a divorce prior to his second marriage.

Bills Nos. 3 and 4 present the following situation: While the appellant was testifying as a witness in his own behalf he was asked by state's counsel whether or not his first wife was in attendance upon court, to which he answered in the affirmative, after which he was asked, "You understand we can't use her as a witness, or can't put her on the stand as a witness," to which he answered in the affirmative. He was then asked, "Are you going to put her on the stand as a witness, and let us have the benefit of her testimony?" That thereafter during the progress of the trial the state called to the witness stand appellant's first wife three different times, and attempted to use her as a witness against appellant, had her sit in the witness chair, and forced appellant's counsel to object to her testimony, and in the presence of the jury argue the law to the court which prohibits a wife from giving testimony against her husband.

The only defensive issue in the case is whether or not appellant married under the mistaken belief that he had been divorced from his first wife. The court charged the jury to acquit, if they had a reasonable doubt as to the existence of this fact. This charge had for its basis appellant's testimony, mentioned above. It was therefore highly important that the state should get before the jury a denial by the first wife of this testimony. The above conduct must have been intended to convey to the jury such a denial, and that it may have had...