Appellant was convicted in the District Court of Goliad County of incest, his punishment being assessed at three years in the penitentiary, from which he appeals. There are two grounds of error submitted for reversal which demand consideration.
1. The error of the court in excluding the testimony of Louis and Theresa Budde and Henry Simon as to the declarations of Caroline Simon, the deceased mother of defendant, and Mathias Simon, his putative father, to the effect that defendant was not the son of Mathias, her husband, and that if defendant got into trouble by his marriage she would protect him. The evidence shows that Mathias Simon was twice married; that Theresa Budde was the offspring of his first marriage; that witness Henry and the defendant, Theodore, were the result of the second marriage, which was with Caroline Malitz; that on the 30th day of September, 1888, defendant married Carrie, the daughter of his half-sister, Theresa Budde. The object of the testimony was, first, to show there was no blood relation between defendant and Carrie Budde; and, second, to show that defendant in marrying acted in good faith, honestly believing that no relationship existed between Carrie Budde and himself, and therefore he could not be amenable to law, even though the relationship in fact existed. We are of opinion that the court did not err in rejecting this testimony. It is the rule established in England and America, and supported on the highest considerations of public policy, that the lips of parents are sealed as to any testimony which would assail the legitimacy of their children born in wedlock (Wharton's Criminal Evidence, 518), and relationship is to be proven as in civil cases. Penal Code, art. 332; 2 Am. and Eng. Encyc. of Law, 140.
It is not pretended, nor is there any offer on the part of appellant, as
a predicate for such testimony, to show that there was nonaccess; or that the said Mathias and Caroline were not living together; or that the said Mathias had become impotent when defendant was conceived in his mother's womb. Bish. Marr. and Div., secs. 1168-1171. There is certainly no question as to the legitimacy of Henry Simon, the younger brother of defendant. Had Mrs. Simon been living her testimony would not have been admissible, especially since Mathias was dead, the putative father of defendant. Id., sec. 1179. The rule invoked by counsel on the admissibility of declarations of deceased persons as to relationship and birth, death, and marriage, establishing pedigree, can have no application, for, if she could not testify living, her declarations would not be admissible after her death. 1 Greenl. Ev., 104.
2. Nor do we think the court erred in refusing to admit the declarations of Caroline Simon to sustain appellant's plea of marriage in good faith. As it appears of record, sometime in 1857 Mathias Simon, a widower with one child (Theresa), intermarried with Caroline Malitz, also with one child (Gus), and they lived together as husband and wife until 1867, when Mathias died, leaving Caroline with two children, Henry and Theodore, as the fruit of their marriage. It was understood by all the family and neighbors that defendant was the son of Mathias and Caroline Simon; he was always recognized as such, and no question was raised as to defendant's legitimacy until at or about the time of his marriage to Carrie Budde, his half-niece. Now, the only evidence on which it is sought to hinge good faith is the purported declarations of the mother, that if defendant got into trouble about it, she would protect him; that he was not the son of his putative father, Mathias. How Mrs. Simon proposed to prove this fact seems to have been locked in her own bosom and to have died with her. No witness who knew her in years past points out a single suspicious fact or rumor. Defendant himself shows not the slightest interest in learning who was his real father; he was satisfied with her promise to protect him. This refreshing confidence of a man 30 years of age in the protecting power of the mother to shield him from the law would unquestionably invoke one's sympathy, were it not that he entered into this marriage with the knowledge that the only way his mother could protect him was by bastardizing him and dishonoring herself. For thirty years she had lived as an honest woman and a true wife; yet the defendant does not seem to have hesitated in demanding the sacrifice. Such is the testimony her own children seek to introduce against Mrs. Caroline Simon, deceased.
We can not hold such evidence admissible as a basis for good faith on the part of defendant. If such declarations were ever made by the dead mother, they are not shown to have been made sufficiently ante litem motam. The illegitimacy of defendant seems to have been utterly unknown to the family and to defendant himself until about the time of
defendant's marriage, and then she said she would protect defendant if he got into trouble. It is true Mrs. Theresa Budde offered to testify that her father and Caroline Simon told her that defendant was illegitimate. The time of these declarations is not stated. If Mathias Simon told her, it must have been before his death in 1867; yet, so far as appears of record, she never communicated this important fact either to her husband or defendant, and therefore it could not have been ground for good faith and honest belief by the defendant. On the contrary, as testified to by the witness Sitterlee, Mrs. Budde stated on the very night of the marriage that her daughter was defendant's half-niece.
Neither is there any force in the objection that the court failed to charge the jury that it must be shown to them that Charles Malitz was dead or divorced before they could find the marriage of Mathias Simon and Caroline Malitz was legal and valid. There was no evidence of any marriage between Charles Malitz and Caroline Malitz save the fact that Mrs. Malitz was so named, and her son (Gus) claimed Malitz as his father. It has never been held that a name and child were proof of marriage. Bish. Mar. and Div., sec. 1029.
The most interesting question arises out of defendant's marriage. The State, on trial of the case, proved that a license was duly issued September 28, 1888, by the county clerk of Victoria County, authorizing the marriage of Theodore Simon and Carrie Budde; that the marriage was performed by S.D. Hall, a justice of the peace of Victoria County, who duly returned said license September 30, 1888, "executed by joining in marriage the within named parties;" but the State further proved that the justice of the peace crossed over into Goliad County and performed the ceremony. It is insisted that there was no marriage, because the justice of the peace can not marry parties outside of his county; that when he went outside of his county he became but a private person, not qualified to discharge any official act; that the indictment simply alleges that the defendant committed incest by intermarrying with his niece, and the State having shown there was no marriage, the prosecution falls to the ground. Without conceding the correctness of the proposition that a justice may not perform a valid marriage ceremony outside of his own county, we are of the opinion that the charge of incest is sufficiently proven to authorize and sustain the judgment rendered in this case.
The crime of incest, though defined under our statute (Penal Code, article 329) to be the intermarrying or carnal knowledge of persons within the forbidden degrees, does not require proof of marriage to sustain it. But where the State proves either cohabitation (that is, living together as husband and wife) or carnal knowledge, the statute declares such proof shall be sufficient proof of defendant's guilt in all cases of incest, without the proof of marriage.
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Appellant was convicted in the District Court of Goliad County of incest, his punishment being assessed at three years in the penitentiary, from which he appeals. There are two grounds of error submitted for reversal which demand consideration.
1. The error of the court in excluding the testimony of Louis and Theresa Budde and Henry Simon as to the declarations of Caroline Simon, the deceased mother of defendant, and Mathias Simon, his putative father, to the effect that defendant was not the son of Mathias, her husband, and that if defendant got into trouble by his marriage she would protect him. The evidence shows that Mathias Simon was twice married; that Theresa Budde was the offspring of his first marriage; that witness Henry and the defendant, Theodore, were the result of the second marriage, which was with Caroline Malitz; that on the 30th day of September, 1888, defendant married Carrie, the daughter of his half-sister, Theresa Budde. The object of the testimony was, first, to show there was no blood relation between defendant and Carrie Budde; and, second, to show that defendant in marrying acted in good faith, honestly believing that no relationship existed between Carrie Budde and himself, and therefore he could not be amenable to law, even though the relationship in fact existed. We are of opinion that the court did not err in rejecting this testimony. It is the rule established in England and America, and supported on the highest considerations of public policy, that the lips of parents are sealed as to any testimony which would assail the legitimacy of their children born in wedlock (Wharton's Criminal Evidence, 518), and relationship is to be proven as in civil cases. Penal Code, art. 332; 2 Am. and Eng. Encyc. of Law, 140.
It is not pretended, nor is there any offer on the part of appellant, as
a predicate for such testimony, to show that there was nonaccess; or that the said Mathias and Caroline were not living together; or that the said Mathias had become impotent when defendant was conceived in his mother's womb. Bish. Marr. and Div., secs. 1168-1171. There is certainly no question as to the legitimacy of Henry Simon, the younger brother of defendant. Had Mrs. Simon been living her testimony would not have been admissible, especially since Mathias was dead, the putative father of defendant. Id., sec. 1179. The rule invoked by counsel on the admissibility of declarations of deceased persons as to relationship and birth, death, and marriage, establishing pedigree, can have no application, for, if she could not testify living, her declarations would not be admissible after her death. 1 Greenl. Ev., 104.
2. Nor do we think the court erred in refusing to admit the declarations of Caroline Simon to sustain appellant's plea of marriage in good faith. As it appears of record, sometime in 1857 Mathias Simon, a widower with one child (Theresa), intermarried with Caroline Malitz, also with one child (Gus), and they lived together as husband and wife until 1867, when Mathias died, leaving Caroline with two children, Henry and Theodore, as the fruit of their marriage. It was understood by all the family and neighbors that defendant was the son of Mathias and Caroline Simon; he was always recognized as such, and no question was raised as to defendant's legitimacy until at or about the time of his marriage to Carrie Budde, his half-niece. Now, the only evidence on which it is sought to hinge good faith is the purported declarations of the mother, that if defendant got into trouble about it, she would protect him; that he was not the son of his putative father, Mathias. How Mrs. Simon proposed to prove this fact seems to have been locked in her own bosom and to have died with her. No witness who knew her in years past points out a single suspicious fact or rumor. Defendant himself shows not the slightest interest in learning who was his real father; he was satisfied with her promise to protect him. This refreshing confidence of a man 30 years of age in the protecting power of the mother to shield him from the law would unquestionably invoke one's sympathy, were it not that he entered into this marriage with the knowledge that the only way his mother could protect him was by bastardizing him and dishonoring herself. For thirty years she had lived as an honest woman and a true wife; yet the defendant does not seem to have hesitated in demanding the sacrifice. Such is the testimony her own children seek to introduce against Mrs. Caroline Simon, deceased.
We can not hold such evidence admissible as a basis for good faith on the part of defendant. If such declarations were ever made by the dead mother, they are not shown to have been made sufficiently ante litem motam. The illegitimacy of defendant seems to have been utterly unknown to the family and to defendant himself until about the time of
defendant's marriage, and then she said she would protect defendant if he got into trouble. It is true Mrs. Theresa Budde offered to testify that her father and Caroline Simon told her that defendant was illegitimate. The time of these declarations is not stated. If Mathias Simon told her, it must have been before his death in 1867; yet, so far as appears of record, she never communicated this important fact either to her husband or defendant, and therefore it could not have been ground for good faith and honest belief by the defendant. On the contrary, as testified to by the witness Sitterlee, Mrs. Budde stated on the very night of the marriage that her daughter was defendant's half-niece.
Neither is there any force in the objection that the court failed to charge the jury that it must be shown to them that Charles Malitz was dead or divorced before they could find the marriage of Mathias Simon and Caroline Malitz was legal and valid. There was no evidence of any marriage between Charles Malitz and Caroline Malitz save the fact that Mrs. Malitz was so named, and her son (Gus) claimed Malitz as his father. It has never been held that a name and child were proof of marriage. Bish. Mar. and Div., sec. 1029.
The most interesting question arises out of defendant's marriage. The State, on trial of the case, proved that a license was duly issued September 28, 1888, by the county clerk of Victoria County, authorizing the marriage of Theodore Simon and Carrie Budde; that the marriage was performed by S.D. Hall, a justice of the peace of Victoria County, who duly returned said license September 30, 1888, "executed by joining in marriage the within named parties;" but the State further proved that the justice of the peace crossed over into Goliad County and performed the ceremony. It is insisted that there was no marriage, because the justice of the peace can not marry parties outside of his county; that when he went outside of his county he became but a private person, not qualified to discharge any official act; that the indictment simply alleges that the defendant committed incest by intermarrying with his niece, and the State having shown there was no marriage, the prosecution falls to the ground. Without conceding the correctness of the proposition that a justice may not perform a valid marriage ceremony outside of his own county, we are of the opinion that the charge of incest is sufficiently proven to authorize and sustain the judgment rendered in this case.
The crime of incest, though defined under our statute (Penal Code, article 329) to be the intermarrying or carnal knowledge of persons within the forbidden degrees, does not require proof of marriage to sustain it. But where the State proves either cohabitation (that is, living together as husband and wife) or carnal knowledge, the statute declares such proof shall be sufficient proof of defendant's guilt in all cases of incest, without the proof of marriage. Penal Code, art. 332. So that when incest is charged in an indictment alleging intermarriage between persons within
the prohibited degrees, it may be proved by cohabitation, and defendant could not answer said charge by attacking the validity of the marriage, as he could in adultery or bigamy. While the statute on incest contemplated two classes of offenses, to-wit, those who lived together as husband and wife, and those having carnal knowledge without pretending to or claiming the relation of husband and wife, yet it was striking at the evil of carnal knowledge, with or without marriage, between persons within the prohibited degrees.
In the case at bar the State fully made out the case of incest by proving the cohabitation of defendant with Carrie Budde, and the fact that the officer performing the ceremony may not have been authorized to act does not change the issue, nor entitle defendant to an acquittal. Neither do we think that the fact of the officer being disqualified to act (if he was disqualified) rendered the marriage void. We are aware the rule generally laid down by the authorities is that a marriage must be proved in all cases of bigamy, adultery, and criminal conversation. 2 Greenl. Ev., sec. 461; 2 Bish. Mar. and Div., sec. 1038. Yet all that can be required in any case is proof of a valid marriage, for a violation of which the parties thereto may be punished. In our opinion the record shows such marriage.
Mr. Greenleaf, after a careful examination of all the decisions and law writers, states the rule to be, that marriage is a civil contract, to the validity of which the consent of parties able to contract is all that is required by natural or public law; and though in most, if not in all, the United States, there are statutes regulating the celebration of marriage rites, yet it is generally considered, when the State does not declare void marriages not celebrated in the prescribed way, or by certain magistrates or ministers, any marriage, regularly made according to the common law, would still be a valid marriage. 2 Greenl. Ev., sec. 460; 1 Bish. Mar. and Div., secs. 435, 449; Meister v. Moore, 96 U.S. 82.
In Hutchins v. Kimmell, 31 Michigan, 126, Cooley, J., in speaking of proof necessary in an action of criminal conversation to establish a foreign marriage, says: "Had the proposed marriage taken place in this State, evidence that a ceremony was performed with the apparent consent and co-operation of the parties would have sustained proof of marriage, though statutory regulations had not been complied with. Whatever be the form of the ceremony, or if there be no ceremony, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding on the parties, which would subject them to legal penalties for a disregard of its obligations. This has been the settled doctrine of the American courts, and the few cases of apparent dissent are borne down by the great weight of authority in favor of the rule stated." Mr. Cooley cites numerous authorities
to sustain the rule, which we think is to be commended for its common sense.
Tested by this rule, we think that in this character of case there is sufficient evidence in the record to show a valid and binding marriage between defendant and Carrie Budde, had they not been within the prohibited degrees. There was not only a marriage ceremony in which the mutual consent to live together as husband and wife was publicly solemized, but they did live together as such, and only separated on being indicted by the grand jury in 1891, and this, under all the authorities, is sufficient to prove a valid marriage. There being no other error that need be considered, we think the judgment should be affirmed.
Affirmed.
Judges all present and concurring.
ON MOTION FOR REHEARING.