Bethany v. State , 91 Tex. Crim. 59 ( 1922 )

Conviction is for bigamy; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant was married to Rosia M. Keener in 1916, and divorced from her on June 6, 1921. On March 14, 1921, he married Ninnie Spates. He did not cohabit with the said Ninnie Spates until after his divorce, when he was remarried to her.

It is the theory of the defense that the marriage of the 14th of March, not followed by a cohabitation, does not satisfy the law defining the offense of bigamy, wherein it is said: "If any person who has a former wife or husband living shall marry another in this State, etc." (Penal Code, Article 481.)

In support of this theory, appellant and his wife testified that the minister who performed the ceremony omitted some of the usual formula, such as declaring them husband and wife, and their intent was not to enter into the marriage relation but simply to bind themselves to do so when, at a subsequent date, the appellant, by the entry of the contemplated divorce decree, might be free to do so. It may be stated in this connection that the second marriage was performed by a minister at the request of the appellant. He presented a license regularly issued, which was duly returned by the minister, who declared in his testimony that the ceremony was regularly performed. This testimony supporting the verdict of the jury would be sufficient to conclude the appellant on the facts even if his defensive theory was a sound one. It is, in our opinion, however, not sound. The word "marry" used in the statute, as applied to the second marriage, does not mean a valid one. All bigamous marriages are void. Cyc. of Law Proc., vol. 5, p. 693; Hooter v. State, 88 Tex.Crim. Rep.. According to the testimony of the appellant and his witnesses, he obtained a license to marry, and the ceremony was performed by the minister. This, according to the authorities, completed the violation of the law. Corpus Juris, vol. 7, p. 1162, subdivision 15, note 75. The fact that Ninnie Spates, at the time of the second marriage, knew that the first was undissolved was of no consequence. Richardson v. State,103 Md. 112; 63 Amer. Rep., 317; Burks v. State, 50 Tex. Crim. 47.

The evidence is sufficient to sustain the conviction. No error is pointed out.

The judgment is affirmed.

Affirmed.

ON REHEARING. January 15, 1922.