Holder v. State , 35 Tex. Crim. 19 ( 1895 )

This is a conviction for adultery, the fine imposed being $1,000. Under license issued for that purpose in 1888, the appellant was, by W.H. Roberts, a preacher, married to Miss Rosa Cleveland, with whom he lived as husband for about two years, when they separated. Upon the trial he proved that said Roberts was not an ordained minister of the gospel at the time he performed said marriage ceremony. This fact being established, he contends this marriage was a nullity, and therefore his second marriage was legal; hence he was not guilty of adultery in living with the woman to whom he was married in 1892. The fact that Roberts was not an ordained minister does not render the first marriage a nullity. Simon v. State, 31 Tex.Crim. Rep.; Foster v. State, 31 Tex. Crim. 409; Gillian v. Reddick, 4 Iredell, 368; 5 Amer. and Eng. Ency. of Law, pp. 100, 103 and notes; Hays v. People, 25 N.Y. 30. Justice Strong, for the Supreme Court of the United States, quoting Greenleaf on Evidence, says: "Though in most, if not all, the United States, there are statutes regulating the celebration of marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally considered that, in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute regulations, would still be a valid marriage." Meister v. Moore, 96 U.S. 76, 80. Such statutes are merely directory. Marriage is a civil contract, and is a thing of common right, so recognized by all civilized countries in all ages, and is encouraged by public policy. A rule of construction as contended for by appellant, would bastardize children whose parents believed they were legally married, and who were not conscious of violating any law, human or divine, and who believed they had entered into the marital relation without coming in conflict with the provisions of statutory enactments. Such a rule, we think, fraught with consequences fearful to the interest of society, would tend to flood the courts with litigation, unsettle property rights, and disturb settled rights of inheritance. We cannot agree to such a rule of construction. Our statute does not render null or prescribe penalties against marriages not entered into under the terms thereof. This view was entertained, and so held, by the Court of Civil Appeals at Dallas, in a recent able and exhaustive opinion delivered by Lightfoot, C. J., in the case of Ingersoll v. McWillie, 30 S.W. Rep., 56.

The first five bills of exception reserved by appellant were not filed in the trial court, as manifested by the record before us. In regard to the admission of evidence complained of in some of the bills of exception, we find — First, that they do not show the evidence was admitted to the jury; and, second, if that be granted, it was properly admitted. The suit brought by appellant against his wife prior to his second marriage, was correctly admitted against him. If he did not authorize it, and the attorneys brought the suit without his knowledge or consent, he should have produced evidence to that effect. The special instructions asked by appellant were correctly refused. We find no error in the record, and the judgment is affirmed.

Affirmed.