Clements v. Crawford

| Tex. | Jul 1, 1874

Gould, J.

There was no error in the charge given, or in refusing the charge asked, unless Section 27, Article 12, of the Constitution refers to persons either of whom was “ by “ the law of bondage, precluded from the rights of matrimony.” The language of that section is : “ All persons who, “ at any time heretofore, lived together as husband and wife, “ and "both of whom, by the law of bondage, were precluded “ from the rights of matrimony, and continued to live together “ until the death of one of the parties, shall be considered as “ having been legally married, and the issue of such cohabitation shall be deemed legitimate. And all such persons as “ may be now living together in such relation, shall be considered as having been legally married; and the children “ heretofore, or hereafter, born of such cohabitation, shall be “ deemed legitimate.”

In terms it refers only to those persons who were both precluded, not from intermarriage with each other merely, but from marriage with any one else. Its object was to legitimate the offspring of those whose bondage had disabled them from legal marriage, -but who had lived together recognizing each other as husband and wife, until the death of one of them, or until the adoption of the Constitution. In the connection of such persons there had been no violation of either law or good morals. A free white man, precluded by no law from marriage, who was living with a woman either white or black, in violation of law, at the time of the adoption of the Constitution, was not thereby made a married man. It is not the letter of the Constitution, nor is it believed to be its intention, to confer on any parties, white or black, whose intercourse was illegal and immoral, the rights and benefits of la'wful wedlock. In so far as the case of Honey v. Clark, (37 Texas, 708) is at variance from this interpretation of the Constitution, it may be regarded as overruled.

The record recites that the jury were “duly empanneled “and sworn to well and truly try the issue joined between the “ parties,” and it is assigned as error that this shows affirmatively that the jury took an oath different from that prescribed bylaw. We do not so regard ,it. The form is a substantial and almost literal copy of that laid down in Sayle's Practice, and is believed to be in very general use throughout the- State. It amounts to a statement that the jury were duly sworn to try the case.

But even were the form of the entry objectionable, we think, in civil cases, it is too late, after verdict and judgment, to object to the formality of the oath. (See Lindley v. Kendell, 4 Blackford, 189; Applegate v. Bayles, 10 Indiana, 435.) The civil cases cited by appellant do not support his propositions. Arthur v. The State (3 Texas, 405), was a capital case, and inaugurated the rule contended for in criminal cases. Its extension to civil eases we regard as unsanctioned by authority, and highly inexpedient.

The judgment is affirmed.