41 S.W. 627 | Tex. Crim. App. | 1897
Appellant was convicted of bigamy, and her punishment assessed at two years in the penitentiary, and she prosecutes this appeal. *126
The only question that needs to be discussed is with reference to the indictment, the charging part of which is as follows: "That one Mrs. Celeste McAfee, in the county of Tarrant and State of Texas, on the 10th day of February, 1897, did unlawfully marry Carl Beaumon, she, the said Mrs. Celeste McAfee, then and there having a husband then living," etc. Appellant insists that this indictment charges no offense; that is, it fails to allege a prior marriage by the defendant, and that her said former husband was living at the time of her second marriage. The language of our statute upon this subject is as follows: "If any person who has a former wife or husband living, shall marry another in this State, such person shall be punished by imprisonment in the State penitentiary for a term not less than two nor more than five years." Penal Code 1895, art. 344. We are not aware that the question raised in this case has been before this court, but it has been held that a prosecution for unlawful marriage can be sustained only by allegation and proof of a former valid marriage and a subsequent marriage, the former legal husband or wife being still living. See Hull v. State, 7 Texas Crim. App., 593, and Dumas v. State, 14 Texas Crim. App., 464. The Constitution and our Code of Criminal Procedure provide that all indictments shall contain the nature and cause of the accusation against the accused. And it has been held that, unless the statute contain in its phraseology all of the essential elements of the offense, it is not sufficient merely to follow the language of the statute. In this case, however, the indictment does not even follow the language of the statute. The statute has the words "former wife or husband living," etc. The indictment here presented does not even allege that Mrs. Celeste McAfee had a former husband living, but, after charging her marriage with Carl Beaumon, proceeds to state, "she then and there having a husband then living." It would be entirely consistent with this indictment if this language be construed to refer to Carl Beaumon; for, the moment she married him, she then and there had husband then living. No intendments should be indulged to help out a failure to allege essential matter in the indictment, but these must be charged. The English authorities, and some of our American States, require indictments for this offense to set out with particularity the time and place of the first marriage, and to whom. 3 Chirt. Cr. Law, 719, and note; Bish. St. Crimes, sec. 601; State v. Labore,
Reversed and dismissed.
[NOTE. — The motion in behalf of the State for a rehearing was overruled without it written opinion. — Reporter.]