Clinnard v. State

197 S.W.2d 1017, 149 Tex. Crim. 617, 1946 Tex. Crim. App. LEXIS 901

Opinions

BEAUCHAMP, Judge.

The appeal is from a conviction of a charge of bigamy with a penalty of two years in the penitentiary.

This is the second appeal of the case (see Clinnard v. State, page 152 of this volume and 192 S. W. (2d) 282). The case was reversed because the court failed to give a charge on circumstantial evidence. In the state of the record as it now appears before us, the fact that the lawful wife, Mildred Wilson Clin nard, was living at the time of the alleged bigamous marriage was proven by direct testimony. Consequently, it was not, at this trial, incumbent upon the court to charge on circumstantial evidence.

The only other question presented by the brief and oral argument in the case was predicated on the refusal of the court to charge on mistake of fact. This contention is based on the testimony of Lila Maud Sharp, a sister of the appellant, who testified in his behalf that she had a conversation with the accused “about his divorce between him and Mildred and told him his divorce papers were there.” She added :“That was with reference to him and Mildred.” The papers so delivered to her brother are not in evidence in the case and the appellant himself did not testify as to the contents or offer any evidence thereon. There is no evidence indicating any diligence on his part to learn whether or not his wife, Mildred Wilson Clinnard, had secured a divorce. There is no indication in the record that she had taken any action toward getting a divorce or discussed doing so. The statement by Mrs. Sharp, as above quoted, is meaningless as presented.

This court has held in Gillum v. State, 147 S. W. (2d) 778, that one charged with bigamy must exercise diligence and make a bona fide effort to ascertain the truth of the rumor that the spouse had obtained a divorce before such party would be relieved from guilt in contracting a second marriage. The appellant in the instant case offered no proof that he even read the papers handed- to him by his sister and there is no effort to show that he exercised any diligence whatsoever to learn whether or not his wife had secured a divorce, even if such papers should have had the effect of putting him on inquiry. The court was left to assume that the papers in question led the appellant tp believe his wife was divorced. No such implication would arise. Consequently, the court was under no duty to submit to the jury an issue on the subject.

Finding no error in the record, the judgment of the trial court is affirmed.