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living in July, 1880, when it is admitted a marriage was celebrated between Dora Max and the defendant.

The court instructed the jury in accordance with the law as above laid down. On the issue of the first wife being alive, it directed the jury in these words: "It is claimed upon the part of the defendant in this case that there is no proof before the jury that this former wife, if wife she were, or if such relation did exist, was in fact living at the time the second marriage was contracted. It is for the jury to determine of that fact, as they do of the other, whether a marriage did in fact exist. The law presumes, when a fact is shown once to exist, its continuance under certain circumstances and for certain lengths of time. With reference to some matters it is made conclusive, and in cases of this character the absence of one of the parties to a marriage, unheard from for a period of five years, is a sufficient justification of a party entering into a new marriage relation, and will avoid the consequences of a criminal prosecution for bigamy. This knowledge and this absence must continue for this five years before the statute will protect him. Independent, however, of this particular and specific defense that the statute gives, it is for the jury to determine, from all the circumstances of the case, whether this woman, alleged to be the wife of the defendant, was in fact living at the time he contracted the alleged second marriage. That is a matter which you have to determine from those presumptions of law and of fact which characterize persons in that condition and situation which you find these parties to have maintained. It is a question of fact dependent entirely upon the probabilities and presumptions that may be before you as to character, condition and situation of this woman."

By this language the jury was in effect directed that in determining whether the wife of the former marriage was living when the second marriage took place, they might act upon the rule of law that when a fact is once shown to have existed, the law presumes its continuance; and since it has been shown that the former wife was alive two or three or four years prior to the second marriage, the law presumes that she continues to live, upon which presumption of law they were authorized to act in determining whether the former wife was living at the time of the second marriage.

The portion of the charge above quoted was excepted to. Did the Court err in so directing the jury? We proceed to examine this question.

In a prosecution for bigamy, the law presumes the innocence of the defendant until the contrary is shown. The law also presumes the existence of a person once established by proof to continue until the contrary is shown, or until a different presumption arises. "Thus where the issue is upon the life or death of a person once shown to have been living, the burden of proof upon the party who asserts the death. But

lies

after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is on the other party." (1 Greenl. Ev., Sec. 41.)

Mr. Greenleaf states, in the same section, that this period of seven years was inserted, after great deliberation, in the British Statute of Bigamy and the statute of leases concerning lives, and has since been adopted from analogy in other cases. (See cases cited in note by Mr. Greenleaf.) The period of five years is inserted in our statute of Bigamy, and thus with us, in such a prosecution as this, the presumption of life ceases at the end of five years. The language in which the rule as to each presumption is stated shows that they are disputable,

Now, assuming that it was proven the first wife was living, five years not having elapsed, there are then two presumptions-the one of innocence operating in favor of defendant, and the other of the continuance of life from the proof of prior existence operating against him. Which should obtain and be adjudged superior?

Should one be held superior to the other? And, if so, which one? The rule as declared by Mr. Bishop (See Bishop on Stat. Crimes, Sec. 611) is that they should be held to neutralize each other; and the issue as to the continuance of life from the proof of prior existence should be left to the jury as a naked matter of fact, divested of any presumption of law.

The judgment in the Queen v. Lumley, 1 Law Rep., C. C. Res. 196, sustains this rule; and in fact goes further, and holds that the law makes no piesumption that a person continues to live. from the proof of his or her existence at a former date. In that case, which was a prosecution for bigamy, the facts were as follows: The prisoner married one Victor at St. Helier's, in the Island of Jersey, in the year 1836, and lived with him. in England until the middle of 1843, when they separated, and she was taken by her parents back to Jersey, where she resumed her maiden name. On the ninth of July, 1847, she, describing herself as a spinster, married Lumley, with whom she lived until March, 1864. Nothing was heard of Victor from the time the prisoner left him in 1843. No evidence was given of the age of Victor, nor any of the age of the prisoner, except that a witness, who stated she was forty-eht years old, said that the prisoner was her senior. The learned Judge (Lush) before whom the trial was had, directed the jury that there being no circumstances leading to any reasonable inference that he had died, "Victor must be presumed to have been living at the date of the second marriage." The question whether this direction was right or not was reserved for the opinion of the Court.

LUSH, J., in delivering the opinion said:

"We are of opinion that the direction to the jury in this case [stating it as given above] was erroneous. In an indictment for bigamy it is incumbent on the prosecution to prove, to the satisfaction of the jury, that the husband or wife, as the case may be, was alive at the date of the sec

pe

ond marriage. That is purely a question of fact. The existence of the party at an antecedent riod may or may not afford a reasonable inference that he was living at the subsequent date. If, for example, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible, that he was living on the latter day, and the jury would in all probability find that he was. If, on the other hand, it were proved that he was then in a dying condition, and nothing further was proved, they would probably decline to draw that inference. Thus the question is entirely for the jury. The law makes no presumption either way. The cases cited of Reg. v. Twyning, (2 B. and Ald. 386), Reg. v. Harborne (2 A. and E. 540), and Nepean v. Doe d. Night, (2 M. and W., 894), appear to us to establish this proposition.

Where the only evidence is that the party was living at a period which is more than seven years prior to the second marriage, there is no question for the jury. The. proviso in the Act (24 and 25 Vict., c. 100 s. 57) then comes into operation and exonerates the prisoner from criminal liability, though the first husband or wife. be proved to have been living at the time when the second marriage was contracted. The Legislature by this proviso, sanctions a presumption that a person who has not been heard of for seven years is dead; but the proviso affords no ground for the converse proposition, viz., that when a party has been seen or heard of within seven years, a presumption arises that he is still living. That, as we have said, is always a ques

tion of fact."

Our statute is substantially the same, as far as relates to the point under consideration, as the 24 and 25 Victoria referred to above.

of

once shown to be alive continues alive until his death is proved, or the rule of law applies by which death is presumed to have occurred-that is, at the end seven years. And the presumption of life is received in the absence of any countervailing testimony as conclusive of the fact, establishing it for the purpose of determining the rights of parties as fully as the most positive proof. The only exception to the operation of this presumption is when it conflicts with the presumption of innocence, in which case the latter prevails." (Montgomery v. Bevans, 1 Sawyer, C. C. R. 666.) The rule thus stated as to these conflicting presumptions by Field, J., is sustained by Reg. v. Twyning, 2 B. and Ald. 386.

Whichever of the rules appearing from the foregoing is adopted, the portion of the charge above quoted is erroneous. By the portion of the charge referred to, the jury were told that in determination of the issue as to the continued life of the first wife, they might call to their aid the presumption of law indicated in the words quoted from the charge. The issue on this point should have been left to the jury to be determined, as a matter of fact, upon such reasonable inferences as the evidence supplied, free from any presumption of law.

It is further contended by appellant that the verdict is contrary to the evidence. This is one of the grounds on which the motion for a new trial was made. We do not think that a verdict of guilty on this evidence, in regard to the first wife being in existence when the second marriage was had, should stand. The evidence, taking the strongest view of it against defendant, proved that the first wife was living about three years prior to the day of the second marriage. We lay out of view what defendant is proved to have stated as to "his family." This expression may have only referred to his children, and he may have used this language in regard to a family of children surviving his wife. It cannot be fairly regarded as an admission by him that the first wife was then living. The word family in common discourse, is frequently applied to children alone. There is no testimony as to the age of the first wife, a most material circumstance to be considered in passing on this point. We cannot perceive that this evidence furnished a reasonable inference that the first wife was alive in July, 1880, so as to establish the guilt of the defendant beyond a reasonable doubt. In our judgment the verdict is not sustained by the evidence and a new trial should have been granted on this ground. We are also of opinion that the Court should have advised the jury when the prosecution rested to acquit the defendant.

In re Phene's Trusts, 5 Law R. Ch. App. cases, 139, the question whether there was any presumption of law that a person continued to live arising upon proof of prior existence was very fully disscussed, and it was held that the law makes no such presumption. This was held to apply to civil and criminal cases alike. This question was also discussed at length by Field, J., in a case (Montgomery v. Beavens) tried before him in the United States Circuit Court for California. He reviewed several of the English cases considered in In re Phene's Trusts, as well as this case, and came to the conclusion that the law as declared in England in the case of Phene's Trusts was different from the law which obtains in this country; stating at the same time that when this presumption of the continuance of life conflicts with the presumption of innocence, the latter prevails. In the opinion delivered in the case referred to, the learned Justice says: "But the law as thus declared in England is different from the law which obtains We will add here what should have been before in this country, so far as it relates to the pre- said, that the information in this cause is good sumption of the continuance of life. Here, as in on general demurrer. If it had been demurred England, the law presumes that a person who to on the special ground that it did not substanhas not been heard of for seven years is dead; tially conform to the requirements of Sections but here the law, differing in this respect from 950, 951 and 952 of the Penal Code, we are not prethe law of England presumes that a partypared to say that we should hold that the objec

tion was not well taken. This ground was taken on the motion in arrest of judgment, but it was then too late to urge it. It had been waived by failure to demur specially. (Sees. 1004, 1012, 1185, Pen. C.)

Judgment and order reversed and cause re manded.

ROBBERY-CIRCUMSTANTIAL EVIDENCE -CHARGE OF COURT-NEW TRIAL.

COURT OF APPEALS OF TEXAS.

FELIX W. ROBERTSON T. THE STATE OF TEXAS.

Held error to charge the jury in a case of circumstantial evidence, that "if you can not account for nor explain the facts and circumstances detailed before you, upon any reasonable ground consistently with defendant's innocence, then if you can not do this you should convict."

Appeal from Williamson County.
WINKLER, J.

This appeal is from a judgment of conviction for an assault with intent to commit the offense of robbery, alleged to have been committed upon one A. C. Shamblin in Williamson County, on October 3, 1877. The trial in the court below commenced on January 13, 1881, and on that day a jury was empaneled and sworn and the defendant entered his plea of "not guilty." The jury returned their verdict on the 14th day of January, 1881, by which the defendant was found guilty of an assault with the intent to commit the offense of robbery, and his punishment assessed at confinement in the penitentiary for a term of ten years.

The principal witnesses relied on by the prosecution for a conviction, on the trial below, were A. C. Shamblin, John Bonner and Dick Ray. There were several other witnesses introduced on behalf of the State for the purpose of proving isolated facts and circumstances, or for certain specified purposes.

The main facts, however, which connect the defendant with the crime, charged against him, other than isolated circumstances upon which reliance is placed, is the testimony of the three witnesses, Shamblin, Bonner and Ray. The important features of the testimony of each of these three witnesses may be stated briefly as follows:

The witness, Shamblin, is the person upon whom the assault is alleged to have been committed. His testimony comes before the court, free from any taint of suspicion, that it is anything else than a truthful narrative of the transaction as seen by himself. This witness testified that on Wednesday, October 3, 1877, on the public road between Georgetown and Round Rock, and near the latter place, in Williamson County, Texas, a man attempted to rob him; it was a mile or two this side of Round Rock, where the road crosses a branch, where there is a thicket of timber and brush on one side of the road; that he had a wagon and team and four

bales of cotton, and was on his way to Austin; had also about five dollars in money with him; it was about one hour after sun up the man came out of the brush without any coat on and bareheaded, also had on goggles; told the witness that he had a sick friend there and asked witness to take him on his wagon to Round Rock; witness assented and started to help him bring the sick man when he (the man with goggles on, drew a pistol on the witness and said for him (witness) to lie down, that he was going to tie the witness and take his wagon and team and cotton to Round Rock and sell them; says he was frightened and thought at first that he might kill him and started to lie down, but raised up before he was entirely down and told him no one man could make him do that and bluffed him off, he began to back and said if he (the witness) would promise not to say anything about it he would let him alone, and the witness promised; witness then went back, got on his wagon and went on; says the man who tried to rob him was about the size of the defendant; the man had black hair; says he was working four horses; two of them were paints. On cross-examination this witness said, we quote his language as found in the statement of facts: "I do not say it was defendant who attempted to rob me, because I do not know; *** the man that attempted to rob me had black hair and had no mustache; I do not recognize the defendant as the man."

The witness, Bonner, testified that he knew nothing about the commission of the offense except what the defendant told him. he then proceeds as follows: On Friday night of the fair week in Belton, October 5, 1877, the defendant came to my room and called me at the window, it was 12 o'clock at night; I knew him well for we were intimate; he told me that he had been to Austin and Round Rock, and that near Round Rock he attempted to rob a man who had a wagon and some cotton; defendant said he was disfigured, had on goggles, and had had his hair dyed by a barber in Round Rock; said he told the man he had a wounded friend and asked him to take him on his wagon to Round Rock; that the wagoner got down and followed him a piece from the road and he drew a pistol on the man and told him to give up his money and lie down and let him tie him, or he would kill him; said he intended to tie the man and take his cotton on to Round Rock and sell it, but saw a man passing along the road and was afraid the wagoner would see him, too, and give the alarm, so he told the wagoner he would let him off if he would say nothing about it, which he agreed to do; he said the man was working a paint horse in his team; I know defendant is the man who came to my window and told me of trying to rob a man near Round Rock; the Belton fair began that year on Tuesday, October 2.

On cross-examination Bonner stated: I am not friendly with defendant; I have, or rather my father has employed counsel to prosecute

this case: I am indicted in Bell County for robbery of Toblin's jewelry store; defendant is also charged with the same robbery; I was arrested in the fall of 1877 and taken to Bell County; defendant told me he went to Waco after the robbery and got a barber to remove the dye from his hair, and said the damned barber never did get it all off his eyebrows; the defendant told me this on Friday, October 5, 1877, it was 12 o'clock at night.

The witness, Kay, after testifying that he knew the reputation of John Bonner in the neighborhood where he lived, for truth and veracity, and that it is good, says: On the night of the 4th of September, 1878, I went, at the request of John Bonner, and concealed myself in a tree near Belton, and Bonner went off and returned with defendant, F. W. Robertson, and they were talking when they came up under the tree, and I heard the defendant say, "Shamblin could not swear to me and if the negro barber swears to blacking my hair I will kill him;" I know it was defendant with Bonner, for I know him well and know his voice; was very near him. On cross-examination he said, "I thought it was about 9 o'clock when defendant and Bonner came under the tree; it might have been later, I had no watch; it was a bright, moon-light night; I was in an elm tree.

There was other testimony tending to show that the defendant was at and about Round Rock at a time not generally stated with distinctness, but evidently introduced in order to show the proximity of the defendant to the scene of the offense at the time of its commission, as circumstances tending to connect the defendant with its perpetration, These witnesses, without exception, when the color of the defendant's hair or beard is mentioned, say it is red. The assaulted party having testified that the man had black hair and no mustache, and that the defendant has red hair and red mustache, it became necessary that the State should make further proof of the identity of the defendant with the crime charged against him.

It was evidently intended to supply this missing link in the testimony by showing that the defendant had disguised himself for the purpose of preventing his identification, and in addition to his employing goggles, as the assaulted party had testified he had, but that he had gone to a barber and procured his naturally red hair and beard to be dyed black, and this proof is attempted to be supplied by the evidence of Bonner and Ray, and in the manner above set out.

In this connection, before proceeding further, we desire to express our admiration at the usefulness and the necessity of right of cross-examination of a witness.

In the present case, by this means, it was developed, not only that the party upon whom the assault was alleged to have been committed, was unable to identify the defendant as the guilty party, but also that the witness, Bonner, was not only at enmity with the defendant, but that in

all probability had a deep interest in securing a conviction of the defendant.

The witness, Ray, if left alone, proves but little except that he, from some cause unexplained, he was a willing instrument in the hands of the witness, Bonner, in placing himself, at Bonner's instance, in a position where he could play the eaves-dropper on the defendant and overhear a part of a conversation between him and Bonner, in which it is contended that the defendant made an admission tending to support the idea that the defendant had disguised himself in order that he might perpetrate this particular crime without becoming recognized.

It is not shown that the defendant had disguised himself, either by dying his hair or otherwise, except by the reproduction of his midnight admission to Bonner supported, as it is, by the statement of Ray, as heard by him, from his position up a tree.

It is not to be overlooked that the witness, Shamblin, testified that the man who made the attempt to rob him had no mustache, whilst it is not shown that he had a black mustache, even in the interview with Bonner, or in the conversation overheard by the witness, Ray. The testimony by which it was attempted to identify the defendant with the attempt at the robbery, and to avoid detection and being identified, by having dyed his hair, coming, as it does, is, to say the least, very meagre and unsatisfactory as a foundation upon which to base a conviction for felony.

We would not feel warranted, however, in setting aside the verdict on this ground alone, except that to permit the judgment to stand, would be to sanction a precedent dangerous to the citizen, when the demands of the law had been fully complied with in other respects. In this case we are unable to say that all the rights of the defendant were properly guarded in the instruction given to the jury on the trial below.

In our opinion the following paragraph of the charge is not entirely free from objection: "If you can reasonably account for or explain the facts and circumstances in evidence before you, in this case, in any way consistently with the defendant's innocence, without resorting to unreasonable doubts and theories, then you should do so and acquit him. But if you can not account for nor explain the facts and circumstances detailed before you. in this case, upon any reasonable ground consistently with defendant's innocence, then, if you can not do this, you should convict."

A charge quite similar to the one here under consideration, and given under like circumstances, though not absolutely condemned in terms, was criticised unfavorably by this court, in Estep v. The State, 9 Ct. App. 369. A defendant in a criminal prosecution enters upon a trial shielded by the presumption of law, that he is innocent of the crime of which he is accused, which presumption abides with and protects him from punishment, until his guilt is es

tablished by the proofs adduced against him. The language of the law is this:

The defendant, in a criminal case, is presumed to be innocent until his guilt is established by legal evidence, and in case of reasonable doubt as to his guilt, he is entitled to be acquitted. C. C. P. Art. 727. Every person accused of an offense shall be presumed to be innocent until his guilt is established to the satisfaction of those whose province it is to try him. P. C. Art. 11.

We are constrained to say that with the plain principles of the statute law staring us in the face, it is erroneous, and especially so, in a case of doubtful evidence as to guilt, for the court, by its charge, to direct, or even permit, the jury to go in search of evidence by which they can find a reasonable explanation of the facts and circumstances consistent with the defendant's innocence, before they would be warranted in acquitting when the law presumes that he is innocent independent of all those facts and circumstances, until his guilt is established by legal evidence. If the evidence leaves the case involved in reasonable doubt as to his guilt, that doubt innures to the benefit of the defendant, and the law says he is entitled to be acquitted.

An instruction on the presumption of innocence and reasonable doubt is a proper and neeessary charge, in all criminal trials, but as a general rule, experience has demonstrated that a charge embracing language of the Code, C. C. P. Art. 727, without elaboration or attempt at explanation, is amply sufficient. Massey v. The State, 1 Ct. App. 563, and see other cases cited in note 215, p. 538, Clark's Criin. Law. The charge of the court, whilst in other respects, so far as observed, was an admirable as well as correct enunciation of the law of the case, was, in our opinion, marred, and the jury liable to be led to an erroneous conclusion to the injury of the defendant. Except in cases where the inculpatory facts depend upon circumstantial testimony, a charge on the presumption of innocence and reasonable doubt, considered in the language of the statute, was uniformly held sufficient, but when a conviction depends alone upon circumstantial evidence, a proper charge on that character of evidence is required by the rulings of this court. Burr v. The State, decided at the present term of this court, and authorities there cited. It seems, from the supplemental motion of the defendant for a new trial, and from affida-r vits appended, that it was a matter of considerable moment, as bearing upon the main defence of the accused, that of alibi, to determine when a certain Methodist quarterly conference or camp meeting came on, and that this was an incidental question whieh was not developed until after the trial had begun.

It is not seen that the testimony bearing upon the subject was of a nature which the defendant or his counsel could reasonably anticipate in preparing for trial, still we feel assured that, in strictness of law, the testimony said to be newly discovered, was of sufficient materiality and im

portance to require a reversal of the judgment. We have not deemed it important to discuss, in this opinion, any of the other questions presented by the record and discussed in argument.

In view of the peculiar features of this case, and considering the meager and unsatisfactory character of the testimony, together with the liability of the charge to mislead the jury, and the probability that the defendant will be able, on another trial, to settle, definitely, the time when the Methodist meeting was held, as that fact bears upon the defence of alibi. Taken altogether we are of opinion the ends of justice and a clear administration of the law, required of the court below that he should have granted the defendant a new trial, which was, in our opinion, an erroneous ruling of the court for which the judgment will be reversed and the cause remanded.

COURT OF APPEALS OF TEXAS.

CONTINUANCE-EVIDENCE-NEGLIGENT
HOMICIDE-INTENT-CHARGE
OF COURT.

JOHN AKEN

v.

THE STATE OF TEXAS.

Even a first application for continuance, though in conformity with the requirements of the statute, is now no longer a matter of right, but its truth and merit is addressed to the sound discretion of the trial court, and if there overruled will be considered by that court again on motion for new trial in connection with the other evidence in the case.

Appeal from Milam county.
WHITE, P. J.

On the 10th day of January, 1876, the indictments in this case was returned into court charging appellant with the murder of one J. B. Scobee in Milam county, on the 7th day of May, 1874. He was brought to trial on the 17th day of May, 1881, and on the 21st a verdict was rendered against him for murder in the second degree, affixing his punishment at fifteen years in the penitentiary.

An application for continuance was made by defendant which was controverted, as to diligence, by the district attorney supported by affidavits as provided by statute. C. C. P. Art. 564. This application was overruled by the court, this ruling having been duly reserved by bill of exceptions is the final error complained of. Even a first application, though in conformity with the requirements of the statute, is now no longer a matter of right, but its truth and merit is addressed to the sound discretion of the trial court and if there overruled will be considered by that court again on motion for new trial in connection with the other evidence in the case. C. C. P. Art. 560. subdivision 6. In passing upon the refusal of a continuance asked on account of the absence of a witness the evidence adduced

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