Holder v. State, 29 S.W. 793 (1895).
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Holder v. State, 29 S.W. 793 (1895). Book View Copy Cite
S. W. Holder
v.
the State
Feb 16, 1895.
29 S.W. 793
P.B. Ward, Lockett and Kimball, for appellant. — 1. The court erred in admitting in evidence the petition for a divorcefiled in Eastland County, apparently by defendant v. Rosa Lee Holder, which was objected to by defendant, because it was not shown that defendant had authorized it to be filed, or that defendant knew its contents or that defendant was the plaintiff in that suit, and this was prejudicial to defendant, because it admitted his marriage as legal to Rosa Lee Holder. This was objected to and bill saved. 2. The court erred in refusing defendant special charge to the jury as follows, to-wit: That if the jury had a reasonable doubt that W.H. Roberts was an ordained or regular licensed minister of the gospel, or that defendant had reasonable ground to believe he was not, then you will acquit defendant. 3. The court erred in charging the jury that the said marriage was solemnized by some person who, although he may not have been a regular licensed or ordained minister of the gospel, yet such person had been in the habit of solemnizing the rites of matrimony between parties, and held himself out to the world as a regular licensed or ordained minister of the gospel, and was so regarded in the community where he lived, and if from his general reputation the contracting parties believed him to be a minister of the gospel and authorized by law to solemnize the rites of matrimony and intended in good faith to be legally married by such person, then in this event the marriage in question would be valid and binding in law. This charge was error, because the jury are told that another person other than those named in the statute may perform the ceremony, and that such person may acquire such right by falsely holding himself out to the public as a minister, and also by deceiving the contracting parties. The court also charged the jury that if the rites of matrimony between defendant and Rosa Cleveland were solemnized by a regular licensed or ordained minister of the gospel, or by some one whom the contracting parties from general reputation had good cause to believe and did believe was a regular licensed or ordained minister of the gospel, the defendant would be guilty of adultery while the marriage so solemnized was subsisting he lived with and had carnal intercourse with Alice Carlock as her pretended husband. This charge assumes that the authority to perform the rites of matrimony may be legally performed by an imposter, provided the parties contracting are successfully deceived by the imposter; and if he has succeeded in fooling the public. 4. An agreement between parties to be married followed by cohabitation and living together as man and wife, and holding themselves out as such in society is not sufficient proof of marriage in bigamy or adultery. Our statute is not directory. Western Union Tel. Co. v. Boren Proctor, 6 Texas Civ. App. 303[ 6 Tex. Civ. App. 303 ]; Dumas v. State, 14 App, 472; McGrew v. State, 13 App., 340. A valid, legal marriage is one which has been solemnized according to the mode and manner, and in accordance with the prerequisites which the law requires. Dumas v. State, 14 App., 472 and 3; Western Union Tel. Co. v. Boren Proctor, Court of Civ. App. of Texas, decided February 8, 1894. In the case of The State v. Hodgkins, 19 Maine, 155, the court says: \The object of requiring the testimony of a person present at the marriage (the charge being adultery) is not merely to prove the performance of the ceremony; but to prove that all the circumstances attending it were such as to constitute a legal marriage. There should be something disclosed by which it may satisfactorily appear that the person performing the ceremony was legally clothed with authority for that purpose.\"
Davidson.
DAVIDSON, Judge.

This is a conviction for adultery, the fine imposed being $1,000. Under license issued for that purpose in 1888, the appellant was, by W. H. Roberts, a preacher, married to Miss Rosa Cleveland, with whom he lived as husband for about two years, when they separated. Upon the trial he proved that said Roberts was not an ordained minister of the gospel at the time he performed said marriage ceremony. This fact being established, he contends this marriage was a nullity, and therefore his second marriage was legal; hence he was not guilty of adultery in living with the woman to whom he was married in 1892. The fact that Roberts was not an ordained minister does not render the first marriage a nullity. Simon v. State, 31 Tex. Crim. Rep. 186; Foster v. State, 31 Tex. Crim. Rep., 409; Gillian v. Reddick, 4 Iredell, 368; 5 Amer. and Eng. Ency. of Law, pp. 100, 103 and notes; Hays v. People, 25 N. Y., 30. Justice Strong, for the Supreme Court of the United States, quoting Greenleaf on Evidence, says: “Though in most, if not all, the United States, there are statutes regulating the celebration of marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally considered that, in the absence of any [*24] positive statute declaring that all marriages not celebrated in the proscribed manner shall be void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute regulations, would still be a valid marriage.” Meister v. Moore, 96 U. S., 76, 80. Such statutes are merely directory. Marriage is a civil contract, and is a thing of common right, so recognized by all civilized countries in all ages, and is encouraged by public policy. A rule of construction an contended for by appellant, would bastardize children whose parents believed they were legally married, and who were not conscious of violating any law, human or divine, and who believed they had entered into the marital relation without coming in conflict with the provisions of statutory enactments. Such a rule, we think, fraught with consequences fearful to the interest of society, would tend to flood the courts with litigation, unsettle property rights, and disturb settled rights of inheritance. We cannot agree to such a rule of construction. Our statute does not render null or prescribe penalties against marriages not entered into under the terms thereof. This view was entertained, and so held, by the Court of Civil Appeals at Dallas, in a recent able and exhaustive opinion delivered by Lightfoot, C. J., in the case of Ingersoll v. McWillie, 30 S. W. Rep., 56.

The first five bills of exception reserved by appellant were not filed in the trial court, as manifested by the record before us. In regard to the admission of evidence complained of in some of the bills of exception, we find—First, that they do not show the evidence was admitted to the jury; and, second, if that be granted, it was properly admitted. The suit brought by appellant against his wife prior to his second marriage, was correctly admitted against him. If he did not authorize it, and the attorneys brought the sidt without his knomledge or consent, he should have produced evidence to that effect. The special instructions asked by appellant were correctly refused. We find no error in the record, and the judgment is affirmed.

Affirmed.