Conviction is for bigamy, punishment being two years in the penitentiary.
The undisputed facts show that Louise Allison met appellant in Wichita County, Texas; after a courtship lasting about two months he asked her in Wichita County, Texas, to marry him, to which she agreed; they went to Tillman County, Oklahoma, just across Red River from Texas, and in Tillman County, Oklahoma, they obtained a marriage license and were there married by a Baptist minister on April 22, 1927, and the marriage license was returned and recorded; immediately after their marriage they returned to Wichita County, Texas; they kept their marriage a secret for about two weeks after which time they went to housekeeping and lived openly
and professedly as husband and wife in said Wichita County, Texas. That appellant had a former wife then living is also without serious dispute.
Article 490, P. C., reads as follows:
"Any person who has a former wife or husband living who shall marry another in this state shall be confined in the penitentiary not less than two nor more than five years."
It will be observed at the outset that our statute does not provide, as has been done in many states, that "the cohabiting together within this state, after a bigamous marriage elsewhere" is a specific criminal offense. The offense last mentioned is defined and a penalty fixed in Alabama, Iowa, Massachusetts, Minnesota, Missouri, Tennessee, Vermont, and probably other states. (See Note 83, page 1163, Vol. 7, Corpus Juris.) Under the express terms of said Article 490 P. C., and LaRose v. State, 29 Tex. Cr. App. 215, 15 S.W. 33, bigamy could not be predicated on the marriage by the minister because it did not take place "in this state." To avoid this predicament the state contended — and if this verdict and judgment stands it must be by upholding such contention — that by appellant and Louise Allison agreeing to take each other as husband and wife, said agreement being evidenced in part by entering into the ceremonial marriage in Oklahoma, followed and supported by living and cohabiting with each other in Texas, and where publicly acknowledging the relation of husband and wife, constituted a common-law marriage in Texas, and upon this alleged common-law marriage is this prosecution for bigamy predicated.
It is unnecessary to discuss at length whether a common-law marriage will support a prosecution for bigamy. That question has been definitely settled in the affirmative by our own court in Burks v. State, 50 Tex.Crim. R., 94 S.W. 1040. That case answers appellant's contention that a common-law marriage cannot be consummated where either the man or woman has another lawful spouse then living. See also People v. Brown, 34 Mich. 340; People v. Mendenhall, 119 Mich. 404, 78 N.W. 325, 75 Am. St. Rep. 408. The validity vel non of the subsequent bigamous marriage is beside the point. All bigamous marriages are invalid because of a living spouse of one of the parties regardless whether the bigamous relations are entered into by ceremonial or common-law marriage.
Appellant requested the court to instruct the jury to return a verdict of not guilty because the uncontradicted evidence showed that the bigamous marriage was entered into in Oklahoma and not
in Texas; this the court refused to do. Appellant excepted to the ruling and brings this point forward in bills of exceptions 1, 2 and 3. Upon the decision of this question the case must turn. While the courts generally have recognized that marriage is a civil contract which may be entered into by the parties without the formality of a ceremony, yet the law for good reason looks with more favor upon ceremonial marriages than it does upon what is usually termed common-law marriages. Many instances are found in the books where parties have entered into common-law marriages, and subsequently for various reasons — such as to comply with the conventions, or to place the legitimacy of children beyond question, or to make property rights more secure — have confirmed their former relations by a ceremonial marriage; but no case has come to the writer's notice where parties, having first entered into a ceremonial marriage, proof of which was available, have found it necessary or desirable to base their relations upon a subsequent common-law marriage. The crime of bigamy consists in contracting the second marriage, one of the contracting parties having a spouse then living; the offense is completed by said marriage, and if the marriage be solemnized by a ceremony cohabitation is not necessary to constitute the offense of bigamy. The parties may immediately separate after the second ceremonial marriage has been consummated, but would still be guilty of bigamy. See Bethany v. State, 91 Tex.Crim. R.,237 S.W. 262. See Beggs v. State, 55 Ala. 108, and other authorities cited under Note 75, page 1162, Vol. 7, Corpus Juris.
In the Bethany case, supra, accused married the second wife in March, 1921, before securing a divorce from his first wife in June, 1921. He did not cohabit with the second wife until after the divorce was granted, after which he remarried her. We quote from the opinion written by Presiding Judge Morrow as follows:
"It is the theory of the defense that the marriage on 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. 265. 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 conclusion was very clearly expressed that the ceremonial marriage, although not followed by cohabitation, completed the violation of the law. If the marriage there entered into completed the offense of bigamy in Texas, a similar marriage entered into by appellant and Louise Allison in Oklahoma completed the offense in that state.
In State v. Ray, 151 N.C. 710, 19 Am. Eng. Ann. Cases, 566, may be found a case on the facts and law very similar to the one now before us.
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Conviction is for bigamy, punishment being two years in the penitentiary.
The undisputed facts show that Louise Allison met appellant in Wichita County, Texas; after a courtship lasting about two months he asked her in Wichita County, Texas, to marry him, to which she agreed; they went to Tillman County, Oklahoma, just across Red River from Texas, and in Tillman County, Oklahoma, they obtained a marriage license and were there married by a Baptist minister on April 22, 1927, and the marriage license was returned and recorded; immediately after their marriage they returned to Wichita County, Texas; they kept their marriage a secret for about two weeks after which time they went to housekeeping and lived openly
and professedly as husband and wife in said Wichita County, Texas. That appellant had a former wife then living is also without serious dispute.
Article 490, P. C., reads as follows:
"Any person who has a former wife or husband living who shall marry another in this state shall be confined in the penitentiary not less than two nor more than five years."
It will be observed at the outset that our statute does not provide, as has been done in many states, that "the cohabiting together within this state, after a bigamous marriage elsewhere" is a specific criminal offense. The offense last mentioned is defined and a penalty fixed in Alabama, Iowa, Massachusetts, Minnesota, Missouri, Tennessee, Vermont, and probably other states. (See Note 83, page 1163, Vol. 7, Corpus Juris.) Under the express terms of said Article 490 P. C., and LaRose v. State, 29 Tex. Cr. App. 215, 15 S.W. 33, bigamy could not be predicated on the marriage by the minister because it did not take place "in this state." To avoid this predicament the state contended — and if this verdict and judgment stands it must be by upholding such contention — that by appellant and Louise Allison agreeing to take each other as husband and wife, said agreement being evidenced in part by entering into the ceremonial marriage in Oklahoma, followed and supported by living and cohabiting with each other in Texas, and where publicly acknowledging the relation of husband and wife, constituted a common-law marriage in Texas, and upon this alleged common-law marriage is this prosecution for bigamy predicated.
It is unnecessary to discuss at length whether a common-law marriage will support a prosecution for bigamy. That question has been definitely settled in the affirmative by our own court in Burks v. State, 50 Tex.Crim. R., 94 S.W. 1040. That case answers appellant's contention that a common-law marriage cannot be consummated where either the man or woman has another lawful spouse then living. See also People v. Brown, 34 Mich. 340; People v. Mendenhall, 119 Mich. 404, 78 N.W. 325, 75 Am. St. Rep. 408. The validity vel non of the subsequent bigamous marriage is beside the point. All bigamous marriages are invalid because of a living spouse of one of the parties regardless whether the bigamous relations are entered into by ceremonial or common-law marriage.
Appellant requested the court to instruct the jury to return a verdict of not guilty because the uncontradicted evidence showed that the bigamous marriage was entered into in Oklahoma and not
in Texas; this the court refused to do. Appellant excepted to the ruling and brings this point forward in bills of exceptions 1, 2 and 3. Upon the decision of this question the case must turn. While the courts generally have recognized that marriage is a civil contract which may be entered into by the parties without the formality of a ceremony, yet the law for good reason looks with more favor upon ceremonial marriages than it does upon what is usually termed common-law marriages. Many instances are found in the books where parties have entered into common-law marriages, and subsequently for various reasons — such as to comply with the conventions, or to place the legitimacy of children beyond question, or to make property rights more secure — have confirmed their former relations by a ceremonial marriage; but no case has come to the writer's notice where parties, having first entered into a ceremonial marriage, proof of which was available, have found it necessary or desirable to base their relations upon a subsequent common-law marriage. The crime of bigamy consists in contracting the second marriage, one of the contracting parties having a spouse then living; the offense is completed by said marriage, and if the marriage be solemnized by a ceremony cohabitation is not necessary to constitute the offense of bigamy. The parties may immediately separate after the second ceremonial marriage has been consummated, but would still be guilty of bigamy. See Bethany v. State, 91 Tex.Crim. R.,237 S.W. 262. See Beggs v. State, 55 Ala. 108, and other authorities cited under Note 75, page 1162, Vol. 7, Corpus Juris.
In the Bethany case, supra, accused married the second wife in March, 1921, before securing a divorce from his first wife in June, 1921. He did not cohabit with the second wife until after the divorce was granted, after which he remarried her. We quote from the opinion written by Presiding Judge Morrow as follows:
"It is the theory of the defense that the marriage on 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. 265. 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 conclusion was very clearly expressed that the ceremonial marriage, although not followed by cohabitation, completed the violation of the law. If the marriage there entered into completed the offense of bigamy in Texas, a similar marriage entered into by appellant and Louise Allison in Oklahoma completed the offense in that state.
In State v. Ray, 151 N.C. 710, 19 Am. Eng. Ann. Cases, 566, may be found a case on the facts and law very similar to the one now before us. The statute of North Carolina had undertaken to supply the omission noticeable in our own statute, but because of the wording that particular provision had been held unconstitutional; therefore, at the time the Ray case was decided it was necessary for the bigamous marriage to occur in North Carolina, just as it is necessary under our statute for it to take place in Texas. Ray was living with his first wife in North Carolina; he separated from her, went into Virginia and there entered into a ceremonial marriage with another woman, returned with her to North Carolina where they lived together as husband and wife. The Supreme Court of that state said:
"Coming back into the state after a bigamous marriage elsewhere, and a living together by the parties as husband and wife, might and ordinarily would constitute the crime of fornication and adultery. State v. Cutshall, 109 N.C. 764,14 S.E. 107, 26 Am. State Rep. 599. But there is nothing in this statute which makes such conduct a felony, or which deals or attempts to deal with it one way or another; and the expression 'or elsewhere' — that is, a bigamous
marriage beyond the borders of the state — having been declared of no effect by the courts, because contrary to the law of the land, there is nothing in the statute which applies to the conduct of the defendant, and he is entitled to go quit of any further molestation by reason of any indictment predicated and necessarily dependent upon it. There are decisions in many of the states, and by courts of recognized authority, sustaining convictions by reason of conduct similar to that imputable to defendant on this evidence, or upholding statutes condemning it. Brewer v. State, 59 Ala. 101; Commonwealth v. Thompson, 2 Cush. (Mass.) 551; State v. Fitzgerald, 75 Mo. 571; State v. Palmer, 18 Vt. 570. But in the cases cited, and all others of like import, so far as we have examined, the statutes in express terms made the 'cohabiting together within the state after a bigamous marriage elsewhere,' a specified criminal offense. Thus, in the Missouri statute (State v. Fitzgerald, supra), the language is, 'Every person having a husband or wife living, who shall marry another person without this state, in any case where such marriage would be punishable if contracted or solemnized in this state, and shall thereafter cohabit with such person within this state, shall be adjudged guilty of bigamy.' "
The Ray case seems decisive of the present one in the absence from our Penal Code of a provision making it a felony for one to cohabit in this state with another person with whom a bigamous marriage has been contracted in another state.
Some light should be shed upon the place where the marriage occurred by the intent and understanding of the parties to the contract. The state placed Louise Allison upon the witness stand. Upon the point at issue she testified:
"I don't know whether it was Tillman County, Oklahoma or not where we were married, but we were married in the town of Davidson. I guess it was in the state of Oklahoma. I did not
marry the defendant in Wichita County, Texas."
Davidson was shown to be in Tillman County, Oklahoma. The evidence quoted shows that the parties themselves never had in mind entering into a common-law marriage in Texas. They intended to marry — and we think they did marry — in Tillman County, Oklahoma. If they contemplated common-law marriage in Texas why the ceremonial performance in Oklahoma? Waiving the fact that the subsequent marriage was invalid because appellant had a former wife living — and that has nothing to do with ascertaining the fact of a second marriage or where it took place — suppose the parties
after the ceremonial marriage in Oklahoma had started to return to Texas and one of them had been killed in an accident and property rights depended upon whether they had been married in Oklahoma, would or could there have been any question about the marriage in Oklahoma having fixed their status as that of husband and wife? If not, then their living together as such in Texas added nothing to the status fixed by the marriage in Oklahoma. Having married under the ceremony and formality of the law in Oklahoma, it seems inconsistent to stamp their conduct in Texas as a common-law marriage. If it was, then unquestionably they married twice, first in Oklahoma by ceremonial law, and again in Texas by common law. Assuming the law in Oklahoma on the subject of bigamy to be the same as ours then the parties without doubt could be prosecuted in Oklahoma for the bigamous ceremonial marriage contracted there, and to sustain the state's position it would be necessary to hold that they also contracted a common-law marriage in Texas. It is not to be questioned that appellant and Louise Allison were married, but we cannot bring ourselves to believe they were married twice. If so, then every couple in this state who have recently crossed into a sister state and been married there to avoid the regulatory provisions regarding marriage license (Acts 41 Legislature, Reg. Sess., Chapter 114, page 260) and after the ceremony returned to Texas and lived together as husband and wife, may be said to have entered into a common-law marriage in Texas, notwithstanding the ceremony without the state may have been solemnized in conformity with every requirement of the law.
Living together in Texas after the bigamous marriage in Oklahoma may have and perhaps did render appellant's relations adulterous under the law of Texas, but not bigamous under the present statute.
The question presented may be of serious moment to border counties of the state, but the remedy should be by legislation and not by strained judicial construction.
Believing the court was in error in not directing a verdict of acquittal under the facts, it follows that the judgment must be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.