McCombs v. State

• Decision Date: 19 December 1906
• Citation: 99 S.W. 1017
• Court: Texas Court of Criminal Appeals
• Parties: McCOMBS v. STATE.

99 S.W. 1017

McCOMBS v. STATE.

Court of Criminal Appeals of Texas.

December 19, 1906.

Rehearing Denied February 20, 1907.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

H. R. McCombs was convicted of bigamy, and appeals. Reversed and remanded.

W. P. Hancock and Tom Connally, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This prosecution was for bigamy. Appellant was married in McLennan county on March 6, 1879, to Emma Price, by virtue of a marriage license. While this marriage was undissolved by death or divorce, appellant entered into a bigamous marriage with Donne Wooten, on December 27, 1890, by virtue of a marriage license issued by the county clerk of Robertson county. In September, 1891, the first wife, Emma, entered suit in Bexar county for divorce against appellant. Service was accepted by appellant, and on October 19, 1891, a decree of divorce was rendered in her favor, dissolving the marital relation between herself and appellant. Appellant continued to live with Donne Wooten under his bigamous marriage until about 1902 or 1903, when a final separation occurred between them. On July 27, 1905, some two or three years after his separation from Donne Wooten, appellant married Annie Langston, by virtue of a marriage license issued by the county clerk of Ellis county. By reason of this marriage the bigamy is alleged in this case. These facts are undisputed. It may be further stated that appellant and Donne Wooten were known as husband and wife wherever they resided from the time they were married in 1890 until their separation; that two children were born to them by reason of their living together. It is also an undisputed fact, proved by both sides, that the only marital contract or agreement entered into between Donne Wooten and appellant was by virtue of the license issued from Robertson county. Donne Wooten testified that she had never heard of appellant's marriage to Emma Price until the institution of this prosecution, and that she never heard or had any intimation of the divorce proceeding between appellant and his first wife, and that the only marital contract ever entered into between herself and appellant was by reason of the license issued from Robertson county. This is a sufficient statement of the case to bring in review the questions discussed.

Exception was reserved to the court's charge, which, in effect, instructed the jury that the law would presume that the marriage entered into between Donne Wooten and appellant was legal; that is, the law would presume that Donne McCombs was the legal wife of defendant at the time he separated from her. Appellant sought to cure this by special instruction to the effect that before appellant could be convicted the evidence must show beyond a reasonable doubt that the marriage to Donne Wooten or Donne McCombs was a valid legal marriage, and, if there was a reasonable doubt on this point, then appellant was entitled to an acquittal. We believe that the charge given by the court was wrong, and that requested by appellant correctly stated the law. Marriage is a contract, and must be shown by the evidence, whenever it becomes an issue. The law does not presume against the innocence of a party, even on a disputed question of fact. The charge was especially harmful in this case, because the uncontroverted evidence, both for the state and appellant, demonstrates the fact that the marriage between Donne Wooten and appellant, by virtue of the license, was void, and at the time entered into was bigamous. If the facts in this case show a marriage at all, it was by reason of the fact of living together and holding each other out to the world as husband and wife. The result of this testimony is but a presumption that a marriage had occurred between them, which the facts demonstrate did not occur, otherwise than the bigamous one by virtue of the Robertson county license. There are some other questions that might require a reversal by reason of the bills of exceptions reserved, which we deem unnecessary to discuss, in view of the main question to be discussed.

We believe that this case can be disposed of upon what we deem the main question, to wit, whether or not the evidence supports the conviction, and whether or not the marriage entered into with Annie Langston is bigamous. We are of opinion that it is not, and that the marriage with her was legal, and that there was no such marital relation existing between Donne Wooten and appellant as to constitute the marriage with Annie Langston bigamous. As before stated, the undisputed evidence shows that the only marital contract entered into between Donne Wooten and appellant was by reason of the marriage license issued in Robertson county and executed in December, 1890. She was used as a witness, and emphatically testified that there was no other contract between them, and that she was in absolute ignorance, during her entire cohabitation with appellant, that he had ever been married to and divorced from his first wife, Emma Price. This was shown to be void by reason of the marital relation existing between appellant and his first wife, Emma Price. Now, if the marital relation existed between appellant and Donne Wooten, it was by reason of the fact that he lived with her for several years, and they held each other out as husband and wife. Reputation and cohabitation, with the consent of parties living together, may furnish prima facie evidence or presumption of a prior marriage. Concede that rule to obtain in prosecutions for bigamy (which is not here discussed), then the effect of this testimony makes but a prima facie case. A case made prima facie by the evidence is always subject to rebutting testimony. This court, in Floeck's Case, 34 Tex. Cr. R. 314, 30 S. W. 794, held that prima facie evidence is merely proof of the case upon which the jury may find a verdict, unless rebutted by other evidence. In other words, prima facie evidence is not conclusive, but such as may be overcome by evidence to the contrary. Such evidence is to be weighed, together with the other evidence, and in connection with the reasonable doubt and the presumption of innocence which obtains in all criminal trials. The rule may be tersely and correctly thus stated: "A prima facie case is that which is received or continues until the contrary is shown. Prima facie evidence means evidence which is sufficient to establish the fact, unless rebutted; evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced." Amer. & Eng. Ency. of Law (2d Ed.) vol. 22, p. 1294, and notes for cited authorities.

If it be conceded that cohabitation, reputation, and holding out of the parties by themselves to the world as married people makes a prima facie case, this would be the limit, and would be sufficient, in the absence of further testimony, to authorize the conclusion of a marriage. In this case the facts are not only uncontroverted, but proved by both sides, that no marital contract had ever been entered into between the parties, except the bigamous marriage in Robertson county, which...