Boger v. State , 19 Tex. Ct. App. 91 ( 1885 )

Hhet, Judge.

This is a conviction for adultery. But one question is presented by the record for our solution; Does the proof show that, at the time of the acts of sexual intercourse with Ellen Davis, Martin Boger was married to another woman and that she was then living?

It is urged by counsel for appellant that the proof of marriage can only be made in the manner stated in article 334, Penal Code. This proposition, we think, is unsound. That the proof of marriage may be made “by the production of the original marriage license and return thereon, or a certified copy thereof, or by the testimony of any person who was present at such marriage, or who has known the husband and wife to live together as married persons,” is certainly true, because it is thus provided by said article. But, evidently, it was not intended by this article to exclude other legitimate means of making such proof. For in bigamy (a felony) it is held in Rex v. Newton, 2 Moo. & Rob., 503, and Rex v. Simmonds, 1 C. & H., 164, “ that the prisoner’s admissions, deliberately made, of a prior marriage in a foreign country were sufficient evidence of such marriage, without proving it to have been celebrated according to the laws of the country where is said to have taken place.” (Roscoe’s Cr. Ev., 317.) If the former marriage can be proved by the admission of the prisoner, certainly the fact that his wife was living at the time of the adultery can be made in the same manner. (Dumas v. State, 14 Texas Ct. App., 464.)

The record informs us that appellant stated to Morgan Gordon, Preacher Bryant.and Thomas Stinchcomb that he had a wife in Alabama; “that she would not come with-him to Texas.” That after the pretended marriage with Ellen Davis, and just before this prosecution was instituted, appellant applied to A. J. Olive, the county attorney, to write a letter to his son, who was in Alabama. Olive was by appellant directed to write in said letter, to bis wife, “ that she had not raised the boys right, or they would behave better;” which was accordingly done.

Dow in this we find deliberate admissions to divers persons of a prior marriage in Alabama,— admissions deliberately made, not only of a prior marriage, but that his wife was living after the commencement of the adulterous intercourse with Ellen Davis. .

We are of the opinion that the proof of marriage, as well as the fact that his wife was alive at the time of the adultery, was sufficient, and the judgment is therefore affirmed.

Affirmed.

[Opinion delivered October 24, 1885.]