23 Tex. 646 | Tex. | 1859
Both marriages were fully established, as alleged. The first one, with Louisa Shack, in the state of Mississippi, on the 10th of April, 1857; and the second, with Elizabeth Jane Cleaveland, in Nacogdoches county, in this state, on the 1st day of October, 1857. One of the witnesses states, that he saw Gorman and his wife Louisa together, once or twice, in Mississippi, after their marriage, and that he came with witness to this country, the 1st of June, 1857. None of the witnesses had seen Louisa, during a period of at least four months before the second marriage; but a month or two after the second marriage, Gorman confessed that he had two wives, one in Mississippi, and one here.
. The jury having found the defendant guilty, it is now contended that the verdict was unauthorized, because it was not sufficiently proved that Louisa was alive at the date of the se
Greenleaf, in treating of this offence, says: “There must also be proof that the first husband, or wife, was living, at the time of the second marriage. And, for this purpose, it is said, that the mere presumption of the continuance of life is not sufficient, without the aid of other circumstances, though seven years have not expired since the last intelligence was had, in regard to the absent person.” (3 Greenl. Ev. § 207.) This rule is announced with a caution, by the use of the terms, “it is said,” as perhaps indicating a want of full assent to its correctness. The case relied on, for its establishment, is Rex v. Twyning, 2 B. & Ald. 386. Ohitty and Starkie announce the same rule, upon the same authority. This case came under review in the Court of King’s Bench, in a subsequent case, in which the extent of the rules established by that case, was fully discussed, both by the bar and bench, when it was held, that that case did not establish it as a rule of evidence, that a jury was not authorized to presume the continuance of life, unaided by other circumstances, in the establishment of bigamy; and that, however the expressed views of the judges might lead to that conclusion, they would not follow them, but determined directly the contrary, that a jury might be allowed so to presume. (The King v. Inhabitants of Harborne, 2 Ad. & Ellis, 255.) In delivering his opinion in this case, Lord Denman, C. J., said:’ “ I must take this opportunity of saying, that nothing can be more absurd than the notion, that there is to be any rigid presumption of law on such questions of fact, without reference to accompanying circumstances ; such, for instance, as the age or health of the party.
These opinions were delivered in a civil cause, where the rights of the parties depended upon proving a second marriage to be void, by showing the first wife to be alive at that date. There is no intimation that the rule of evidence would have been different in a criminal case. The degree of certainty required, as to the existence of facts in a criminal case, may and should induce a jury to exercise greater caution in basing their action upon such a presumption, than if it were in a civil case. Still it is a presumption, that they should be allowed to weigh, and which should not be excluded from them by any artificial rule of evidence. Had it been shown, that the wife, Louisa, was certainly alive the day before the indictment was found, the presumption would have been violent, and one upon which a jury would not hesitate to act, that her life continued one day, in the absence of everything leading to an opposite conclusion. They might not feel warranted in including the same presumption through the space of a whole year, or even for six months, or three months, unless aided by either affirmative or negative circumstances.
In the case before us, the admission of the defendant is an important circumstance, in two respects. 1st. If she had died, he, above all persons in this state, would have been most likely to have heard of it, and would not have said that, one or two months after the last marriage, which took for granted that she was still living. 2d. The admission takes away from him the
Another circumstance of a negative character, is very' important-in this connexion. He was indicted in July, 1858, and tried in January, 1859. He must have known of the primd facie case against him, arising from the direct admission made by himself; and had his wife been dead in October, 1857, when he married the second time, he would have made some effort to have shown it, in his defence. We think there is no error presented in the case.
Judgment affirmed.