Burgess v. State , 88 Tex. Crim. 146 ( 1920 )

In his motion for rehearing, appellant urges with much force, that we erred in holding correct the action of the trial court in refusing to charge on accomplice testimony as applicable to Mrs. Evans, with whom the alleged bigamous marriage was charged, and after a careful examination of the authorities to which our attention is called, we have concluded that appellant's position is well taken.

It was testified by appellant that before he went to Cleburne with Mrs. Evans, on the day of the alleged bigamous marriage, he informed her that he was already married. This fact, if true, would call for a charge on the law of accomplice testimony, substantially as requested by appellant. Mr. Wharton, in his work on Criminal Law, 11th Ed., Secs. 2018 and 2019, says: "To bigamy, as to all other offenses, applies the law of principal and accessory . . . Where the offense is a felony, then one present, knowingly aiding and abetting, even as a party, is a principal . . ." . . . "If this view be correct, a person who, knowing that fact, marries another who has another husband or wife then living, is a principal in the bigamy."

If Mr. Wharton is correct, and it must be conceded that no authorities holding to the contrary are before us, then Mrs. Evans, if she knew that appellant was married before she entered into said bigamous relation with him, would come under the provisions of our law relative to accomplice testimony, when she became a witness in the case. Whether she did know such fact, or was informed thereof, is a question for the jury under appropriate instruction. The cases of Burton v. State,51 Tex. Crim. 202, and Bryan v. State, 63 Tex.Crim. Rep., cited by appellant, while not directly in point, seem to indicate that the views of the court in those opinions coincide with the law as herein announced.

For the reasons stated, the motion for rehearing is granted, and the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.