Stevens v. State, 25489
| Decision Date | 07 November 1951 |
| Docket Number | No. 25489,25489 |
| Parties | STEVENS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Tom M. Miller, Graham, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
DAVIDSON, Commissioner.
This is a conviction for bigamy; the punishment, two years in the penitentiary.
It is undisputed that the first marriage was a valid ceremonial marriage and that the second, or bigamous, marriage is made to depend entirely upon circumstances claimed to be sufficient to constitute a common-law marriage.
Appellant insists that (a) a bigamous marriage cannot be founded upon a common-law marriage, and (b) the instant facts do not show a common-law marriage.
The basis of the first contention lies in the fact that a bigamous marriage is absolutely void and therefore may not be the subject of the agreement necessary to a common-law marriage.
In two cases this court has announced the rule that the crime of bigamy may be founded upon a common-law marriage. Burks v. State, 50 Tex.Cr.R. 47, 94 S.W. 1040, and Hopson v. State, 115 Tex.Cr.R. 260, 30 S.W.2d 311, 70 A.L.R. 1028. Neither of these cases, however, entered into a discussion of the question, especially in the light of the contention now made which is that the parties to a common-law marriage cannot agree or enter into a contract to do that which is absolutely void. The question is not without difficulty.
In Bethany v. State, 91 Tex.Cr.R. 59, 237 S.W. 262, it was said:
In 7 Am.Jur., Bigamy, p. 756, we find the basis for the rule just stated, in the following language: 'A more accurate statement is that it is the appearing to contract a second marriage and the going through the ceremony which constitutes the crime of bigamy; otherwise, it never could exist in ordinary cases, as a previous marriage always renders null and void a marriage that is celebrated afterward by either of the parties during the lifetime of the other.'
As supporting the text quoted, attention is there called to the case of People v. Brown, 34 Mich. 339, 22 Am.Rep. 531, where it was held that a marriage between a white woman and a Negro man could be bigamous, notwithstanding the existence of a statute forbidding such a marriage between such parties.
Also, in 10 C.J.S., Bigamy, § 5 a, p. 364, it is said: 'While it has been held that the subsequent...
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U.S. v. Ali
...a marriage that is celebrated afterward by either of the parties during the lifetime of the other."); see also Stevens v. State, 156 Tex. Crim. 431, 243 S.W.2d 162, 163 (1951) (quoting identical language in former of Am.Jur.); State v. Eden, 350 Mo. 932, 169 S.W.2d 342, 345 (1943) (same). T......
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