Simon v. State

• Decision Date: 26 October 1892
• Citation: 20 S.W. 399
• Parties: SIMON v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

20 S.W. 399

SIMON v. STATE.¹

Court of Criminal Appeals of Texas.

October 26, 1892.

Appeal from district court, Goliad county; H. CLAY PLEASANTS, Judge.

Indictment of T. Simon for incest. Defendant was convicted, and he appeals. Affirmed.

Crain, Keeberg & Grimes, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted in the district court of Goliad county of incest, his punishment being assessed at three years in the penitentiary, from which he appeals. There are two grounds of error submitted for reversal which demand consideration.

1. The error of the court in excluding the testimony of Louis and Theresa Budde and Henry Simon as to the declarations of Caroline Simon, the deceased mother of defendant, and Matthias Simon, his putative father, to the effect that defendant was not the son of Matthias, her husband, and that, if defendant got into trouble by his marriage, she would protect him. The evidence shows that Matthias Simon was twice married; that Theresa Budde was the offspring of his first marriage; that witness Henry and the defendant, Theodore, were the result of the second marriage, which was with Caroline Malitz; that on the 30th day of September, 1888, defendant married Carrie, the daughter of his half-sister, Theresa Budde. The object of the testimony was — First, to show there was no blood relation between defendant and Carrie Budde; and, second, to show that defendant in marrying acted in good faith, honestly believing that no relationship existed between Carrie Budde and himself, and therefore he could not be amenable to law, even though the relationship in fact existed. We are of opinion that the court did not err in rejecting this testimony. It is the rule established in England and America, and supported on the highest considerations of public policy, that the lips of parents are sealed as to any testimony which would assail the legitimacy of their children born in wedlock, (Whart. Crim. Ev. 518;) and relationship is to be proven as in civil cases, (Pen. Code Tex. art. 332; 2 Amer. & Eng. Enc. Law, 140.) It is not pretended, nor is there any offer on the part of appellant, as a predicate for such testimony, to show that there was nonaccess; or that the said Matthias and Caroline were not living together; or that the said Matthias had become impotent when defendant was conceived in his mother's womb. Bish. Mar. & Div. §§ 1168-1171. There is certainly no question as to the legitimacy of Henry Simon, the younger brother of defendant. Had Mrs. Simon been living, her testimony would not have been admissible, especially since Matthias was dead, the putative father of defendant. Id. § 1179. The rule invoked by counsel on the admissibility of declarations of deceased persons as to relationship and birth, death, and marriage, establishing pedigree, can have no application, for, if she could not testify living, her declarations would not be admissible after her death. 1 Greenl. Ev. 104.

2. Nor do we think the court erred in refusing to admit the declarations of Caroline Simon to sustain appellant's plea of marriage in good faith. As it appears of record, some time in 1857, Matthias Simon, a widower with one child, (Theresa,) intermarried with Caroline Malitz, also with one child, (Gus,) and they lived together as husband and wife until 1867, when Matthias died, leaving Caroline with two children, Henry and Theodore, as the fruit of their marriage. It was understood by all the family and neighbors that defendant was the son of Matthias and Caroline Simon; he was always recognized as such; and no question was raised as to defendant's legitimacy until at or about the time of his marriage to Carrie Budde, his half-niece. Now, the only evidence on which it is sought to hinge good faith is the purported declarations of the mother that, if defendant got into trouble about it, she would protect him; that he was not the son of his putative father, Matthias. How Mrs. Simon proposed to prove this fact seems to have been locked in her own bosom, and to have died with her. No witness who knew her in years past points out a single suspicious fact or rumor. Defendant himself shows not the slightest interest in learning who was his real father; he was satisfied with her promise to protect him. This refreshing confidence of a man 30 years of age in the protecting power of the mother to shield him from the law would unquestionably invoke one's sympathy, were it not that he entered into this marriage with the knowledge that the only way his mother could protect him was by bastardizing him, and dishonoring herself. For 30 years she had lived as an honest woman and a true wife; yet the defendant does not seem to have hesitated in demanding the sacrifice. Such is the testimony her own children seek to introduce against Mrs. Caroline Simon, deceased. We cannot hold such evidence admissible as a basis for good faith on the part of defendant. If such declarations were ever made by the dead mother, they are not shown to have been made sufficiently ante litem motam. The illegitimacy of defendant seems to have been utterly unknown to the family and to defendant himself, until about the time of defendant's marriage, and then she said she would protect defendant if he got into trouble. It is true Mrs. Theresa Budde offered to testify that her father and Caroline Simon told her that defendant was illegitimate. The time of these declarations is not stated. If Matthias Simon told her, it must have been before his death, in 1867; yet, so far as appears of record, she never communicated this important fact either to her husband or defendant, and therefore it could not have been ground for good faith and honest belief by the defendant; on the contrary, as testified to by the witness Sitterlee, Mrs. Budde stated...