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75 Tex. Crim. 85

171 S.W 221

Coy v. State

Court of Criminal Appeals of Texas

Decided October 28, 1914

Court of Criminal Appeals of Texas · decided 1914-10-28

<p>1.—Bigamy—Burden of Proof—Mistake—Charge of Court.</p> <p>It is not required by the law that an accused shall establish Ms defense beyond a reasonable doubt; and where, upon trial of bigamy, defendant claimed that he was laboring under a mistake of fact that his first wife had procured a divorce from him and that this did not arise from a want of proper care on his part, and offered testimony to that effect, the court charged the jury that if they believed from the evidence beyond a reasonable doubt, etc., that this mistake existed, to acquit the defendant, the same was reversible error, although the burden of proof was on the defendant.</p> <p>0.—Same—Rule Stated—Burden of Proof—Reasonable Doubt.</p> <p>There is quite a difference between the burden of proof, and the proof establishing a fact beyond a reasonable doubt, and while the burden to show a mistake of fact was upon the defendant, yet he was not required to show such mistake beyond a reasonable doubt.</p> <p>3.—Same—Continuance—Practice on Appeal.</p> <p>While the testimony of the absent witnesses was admissible, yet the cause being reversed on other grounds, this matter need not be considered.</p> <p>4. —Same—Evidence—Proper Care—Cross-examination—Decree of Divorce —Piling.</p> <p>Where, upon trial of bigamy, the defendant claimed that lie labored under a mistake of fact that his second wife was divorced from him when he married his third wife, and introduced in evidence the contents of a letter to that effect, and that this mistake did not arise from a want of proper care upon his part, there was no error in permitting the State on cross-examination to introduce facts that he did not use proper care, and that the present wife was his third wife, and that in marrying his second wife he acted upon a certified copy of divorce from his first wife, which he did not do in his last marriage, as said certified copy of divorce was only introduced to show want of proper care on the part of the defendant, and not for any other purpose and was expressly so limited by the court, and the Act of Congress under which it would not have been admissible did not apply, nor was it necessary to file said decree. Following Clayton v. State, 67 Texas Chim. Rep., 311. Davidson, Judge, dissenting.</p> <p>5. —Same—Affidavit—Continuance. ’</p> <p>Upon trial of bigamy, there was no error in excluding from the evidence a doctor’s affidavit as to the condition of an absent witness.</p> <p>6. —Same—Decree of Divorce—Charge of Court.</p> <p>Where, upon trial of bigamy, a decree of divorce from defendant’s first wife was introduced in evidence to show a want of diligence on part of defendant in ascertaining whether he was divorced from his second wife at the time he married his third wife in Texas, although said decree was not properly authenticated and had not been filed with the records of the court, there was no error, nor in the court’s failure to give a peremptory charge to acquit, as defendant admitted by his testimony that he was divorced from his first wife before he married the second wife. Davidson, Judge, dissenting.</p> <p>[Rehearing denied November 35, 1914.—Reporter.]</p>

Cited by 1 later decisions — most recently May 1927

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1914-10-28

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DAVIDSOH, Judge

¶1 (dissenting and partly concurring).—I concur in the reversal of the case, but believe my brethren are in error in not reversing the case on the last proposition discussed in the majority opinion. The State elicited, over the objection of appellant, that when he married the Hew Jersey wife he had a living wife in Saginaw, Michigan. Having proved this over the objection of appellant, the State introduced the decree of some court in Michigan showing the divorce. Various objections were urged to this which are acknowledged to be well taken. This decree was not properly authenticated so as to be used as the judgment of another State, nor was it filed with the records of the court so as to be used as evidence. Therefore, it was not evi *90 dence in the case. My brethren seek to avoid this by seeking to show it was introduced to show a want of diligence in ascertaining whether or not he was divorced from his New Jersey wife at the time he married in Texas. I can not concur with that view. When the marriage in Saginaw was proved, if the decree of the court showing a divorce prior to the time he married the New Jersey wife was relied upon, then it was necessary to have the decree properly certified as required by the statute under the Act of Congress in order to be used as evidence in the trial of this case, and was necessary to have it filed with the records of the court as required by the statute of this State, three days before the trial. This was fully as damaging as any testimony introduced in the case. When the Michigan marriage was proved this, of course, preceded the New Jersey marriage. If at the time he married in New Jersey his Michigan wife was still living and un divorced, the New Jersey marriage was bigamous; and having alleged that marriage in the indictment as a legal marriage, it must be proved. If the Michigan wife was living undivorced at the time he married in New Jersey, that was a bigamous marriage and that part of the indictment would not be sustained as it could not constitute a valid marriage. So the importance of this decree as a fact in the case, was almost paramount, because the moment the proof of the Michigan marriage was introduced, the State, in order to prove the valid marriage in New Jersey, was compelled to get rid of, in some way, the Michigan marriage, because if that was existing,—a wife living and undivorced,-—the New Jersey marriage was a nullity and the State would then lose its case at once. This question was thoroughly adjudicated in McCombs v. State, 50 Texas Crim. Bep., 490. In that case it was laid down as essential to the crime of bigamy that the preceding marriage, alleged in the indictment, must be a legal one and not’illegal; and if that was a bigamous marriage, of course, this was not illegal, and that part of the indictment must necessarily fail. The court, it is claimed, undertook to limit this testimony to the proof of a want of diligence on appellant’s part in ascertaining the fact that he was divorced from the New Jersey wife, but it was illegal testimony, and that being true, under all the decisions, the court can not by the charge, limit its effect. The error can not be thus cured. The illegality of admitted testimony can not be cured by changing its effect to some particular thought and effect in the case. If that decree had not been introduced, the State, in this particular case, had failed to make out a case against the defendant. I do not care to go over what was said in the McCombs case, supra. That case reviews the authorities and correctly decides the question and-is conclusive of this case on that question. Therefore, I can not agree with my brethren on that particular phase of their opinion. If it only affected this case perhaps it would not make so much difference as it is reversed and will go back for trial in view of the decision, but the question may arise again. The ruling of my brethren ought not to become a precedent.

¶2 I think the judgment ought also to have been reversed on these bills *91 of exceptions reserved by appellant. Concurring in the reversal of the case, I dissent from that part of it, and file this brief statement.

[Rehearing denied November 35, 1914.—Reporter.]
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