McAfee v. State

• Decision Date: 24 June 1897
• Citation: 41 S.W. 627
• Parties: McAFEE v. STATE.
• Court: Texas Court of Criminal Appeals

41 S.W. 627

McAFEE v. STATE.

Court of Criminal Appeals of Texas.

June 24, 1897.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Celeste McAfee was convicted of bigamy, and appeals. Reversed.

Jas. S. Davis, for appellant. J. W. Swayne and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of bigamy, and her punishment assessed at two years in the penitentiary, and she prosecutes this appeal.

The only question that needs to be discussed is with reference to the indictment, the charging part of which is as follows: "That one Mrs. Celeste McAfee, in the county of Tarrant and state of Texas, on the 10th day of February, 1897, did unlawfully marry Carl Beaumon, she, the said Mrs. Celeste McAfee, then and there having a husband then living," etc. Appellant insists that this indictment charges no offense; that is, it fails to allege a prior marriage by the defendant, and that her said former husband was living at the time of her second marriage. The language of our statute upon this subject 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 for a term not less than two nor more than five years." Pen.Code 1895, art. 344. We are not aware that the question raised in this case has been before this court, but it has been held that a prosecution for unlawful marriage can be sustained only by allegation and proof of a former valid marriage and a subsequent marriage, the former legal husband or wife being still living. See Hull v. State, 7 Tex. App. 593, and Dumas v. State, 14 Tex. App. 464. The constitution and our Code of Criminal Procedure provide that all indictments shall contain the nature and cause of the accusation against the accused. And it has been held that, unless the statute contain in its phraseology all of the essential elements of the offense, it is not sufficient merely to follow the language of the statute. In this case, however, the indictment does not even follow the language of the statute. The statute has the words "former wife or husband living," etc. The indictment here presented does not even allege that Mrs. Celeste McAfee had a former husband living, but, after charging her marriage with Carl Beaumon, proceeds to state, "she then and there having a husband then living." It would be entirely consistent with this indictment if this language be construed to refer to Carl Beaumon; for, the moment she married him, she then and there had a husband then living. No intendments should be indulged to help out a failure to allege essential matter in the indictment, but these must be charged. The English authorities, and some of our American states, require indictments for this offense to set out with particularity the time and place of the first marriage, and to whom. 3 Chit. Cr. Law, 719, and note; Bish. St. Crimes, § 601; State v. La Bore, 26 Vt. 765. Mr. Bishop on this subject states the better rule to be as follows: "The first marriage is practically one-half of the case, and is often the most nice and delicate part. Commonly it can be proved only by exhibiting the particulars. And in reason, under a constitution declaring, as some of ours do, that `no subject shall be held to answer for any crime or offense until the same is fully and plainly, substantially and formally, described to him,' there is fair ground for rejecting a mere general allegation of half of the case, as not complying with this requirement, and for holding the meaning to be that what is special to the particular instance, in distinction from the crime in general, must be set out." See Bish. St. Crimes, § 602. It is true, the first marriage is not criminal. Its existence, however, is a condition which makes the second marriage a crime. It is a fact that must be proved, and certainly enough of the former marriage must be alleged to admit this proof. In a Kentucky case (Davis v. Com., 13 Bush, 318) this question came up on an indictment almost similar in terms to the one before us the indictment being as follows: "That Eliza A. Davis on the ___ day of May, 1877, in the county and...