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proven the

living in July, 1880, when it is admitted a mar- after the lapse of seven years, without intelliriage was celebrated between Dora Max and gence concerning the person, the presumption of the defendant.

life ceases, and the burden of proof is on the other The court instructed the jury in accordance party.” (1 Greenl. Ev., Sec. 41.) with the law as above laid down. On the issue Mr. Greenleaf states, in the same section, that of the first wife being alive, it directed the jury this period of seven years was inserted, after in these words: “It is claimed upon the part great deliberation, in the British Statute of Bigof the defendant in this case that there is no amy and the statute of leases concerning lives, proof before the jury that this former wife, if wife and has since been adopted from analogy in other she were, or if such relation did exist, was in

(See cases cited in note by Mr. Greenleaf.) fact living at the time the second marriage was The period of five years is inserted in our statute contracted. It is for the jury to determine of of Bigamy, and thus with us, in such a prosecuthat fact, as they do of the other, whether a mar- tion as this, the presumption of life ceases at the riage did in fact exist. The law presumes, when end of five years. The language in which the a fact is shown once to exist, its continuance rule as to each presumption is stated shows that under certain circumstances and for certain they are disputable, lengths of time. With reference to some matters Now, assuming that it was

is made conclusive, and in cases of this char- first wife was living, five years not having acter the absence of one of the parties to a mar- elapsed, there are then two presumptions—the riage, unheard from for a period of five years, one of innocence operating in favor of defendant, is a sufficient justification of a party entering and the other of the continuance of life from the into a new marriage relation, and will avoid the proof of prior existence operating against him. consequences of a criminal prosecution for big- Which should obtain and be adjudged superior ? amy. This knowledge and this absence must Should one be held superior to the other ? continue for this five years before the statute And, if so, which one? The rule as declared by will protect him. Independent, however, of this Mr. Bishop (See Bishop on Stat. Crimes, Sec. particular and specific defense that the statute 611) is that they should be held to neutralize gives, it is for the jury to determine, from all the each other; and the issue as to the continuance circumstances of the case, whether this woman, of life from the proof of prior existence should be alleged to be the wife of the defendant, was in left to the jury as a naked matter of fact, divested fact living at the time he contracted the alleged of any presumption of law. second marriage. That is a matter which you The judgment in the Queen v. Lumley, 1 Law have to determine from those presumptions of Rep., C. C. Res. 196, sustains this rule; and in law and of fact which characterize persons in fact goes further, and holds that the law makes that condition and situation which you find no piesumption that a person continues to live these parties to have maintained. It is a ques- from the proof of his or her existence at a former tion of fact dependent entirely upon the proba- date. In that case, which was a prosecution for bilities and presumptions that may be before you bigamy, the facts were as follows: The prisoner as to character, condition and situation of this married one Victor at St. Helier's, in the Island woman.”

of Jersey, in the year 1836, and lived with him By this language the jury was in effect di- in England until the middle of 1843, when they rected that in determining whether the wife of separated, and she was taken by her parents the former marriage was living when the second back to Jersey, where she resumed her maiden marriage took place, they might act upon the name. On the ninth of July, 1847, she, describrule of law that when a fact is once shown to ing herself as a spinster, married Lumley, with have existed, the law presumes its continuance; whom she lived until March, 1864. Nothing was and since it has been shown that the foriner wife heard of Victor from the time ihe prisonerleft him was alive two or three or four years prior to the in 1843. No evidence was given of the age of second marriage, the law presumes that she con- Victor, nor any of the age of the prisoner, except tinues to live, upon which presumption of law that a witness, who stated she was forty-esht they were authorized to act in determining years old, said that the prisoner was her senior, whether the former wife was living at the time the learned Judge (Lush) before whom the trial of the second marriage.

was had, directed the jury that there being no The portion of the charge above quoted was circumstances leading to any reasonable inference excepted to. Did the Court err in so directing that he had died, “ Victor must be presumed to the jury? We proceed to examine this ques- have been living at the date of the second martion.

riage.” The question whether this direction was In a prosecution for bigamy, the law presumes right or not was reserved for the opinion of the the innocence of the defendant until the con- Court. trary is shown. The law also presumes the ex- LUSH, J., in delivering the opinion said: istence of a person once established by proof to We are of opinion that the direction to the continue until the contrary is shown, or until a jury in this case [stating it as given above] was different presumption arises. “Thus where the erroneous. In an indictment for bigamy it is issue is upon the life or death of a person once incumbent on the prosecution to prove, to the shown to have been living, the burden of proof satisfaction of the jury, that the husband or wife, lies upon the party who asserts the death. But as the case may be, was alive at the date of the second marriage. That is purely a question of fact. once shown to be alive continues

alive The existence of the party at an antecedent pe- until his death is proved, or the rule of riod may or may not afford a reasonable infer- law applies by which death is presumed ence that he was living at the subsequent date. to have occurred—that is, at the end of If, for example, it were proved that he was in good seven years. And the presumption of life is rehealth on the day preceding the second marriage, ceived in the absence of any countervailing testhe inference would be strong, almost irresistible, timony as conclusive of the fact, establishing it that he was living on the latter day, and the for the purpose of determining the rights of parjury would in all probability find that he was. ties as fully as the most positive proof. The If

, on the other hand, it were proved that he was only exception to the operation of this presumpthen in a dying condition, and nothing further tion is when it conflicts with the presumption was proved, they would probably decline to draw of innocence, in which case the latter prevails." that inference. Thus the question is entirely (Montgomery v. Bevans, 1 Sawyer, C. C. R. 666.) for the jury. The law makes no presumption The rule thús stated as to these conflicting preeither way. The cases cited of Reg. v. Twyning, sumptions by Field, J., is sustained by Reg. v. (2 B. and Ald. 386), Reg. v. Harborne (2 A. and E. Twyning, 2 B. and Ald. 386. 540), and Nepean v. Doe d. Night, (2 M. and W., Whichever of the rules appearing from the 894), appear to us to establish this proposition. foregoing is adopted, the portion of the charge

Where the only evidence is that the party was above quoted is erroneous. By the portion of the living at a period which is more than seven charge referred to, the jury were told that in deyears prior to the second marriage, there is no termination of the issue as to the continued life question for the jury. The proviso in the Act of the first wife, they might call to their aid the (24 and 25 Viot., c. 100 s. 57) then comes into presumption of law indicated in the words quoted operation and exonerates the prisoner from crim- from the charge. The issue on this point should inal liability, though the first husband or wife have been left to the jury to be determined, as a be proved to have been living at the time when matter of fact, upon such reasonable inferences the second marriage was contracted. The Legis- as the evidence supplied, free from any presumplature by this proviso, sanctions a presumption tion of law. that a person who has not been heard of for It is further contended by appellant that the seven years is dead; but the proviso affords no verdict is contrary to the evidence. This is one ground for the converse proposition, viz., that of the grounds on which the motion for a new when a party has been seen or heard of within trial was made. We do not think that a verdict seven years, a presumption arises that he is still of guilty on this evidence, in regard to the first living. That, as we have said, is always a ques- wife being in-existence when the second martion of fact."

riage was had, should stand. The evidence, Our statute is substantially the same, as far as taking the strongest view of it against defendrelates to the point under consideration, as the ant, proved that the first wife was living about 24 and 25 Victoria referred to above.

three years prior to the day of the second marIn re Phene's Trusts, 5 Law R. Ch. App. cases, riage. We lay out of view what defendant is 139, the question whether there was any pre- proved to have stated as to “his family. This sumption of law that a person continued to live expression may have only referred to his chilarising upon proof of prior existence was very dren, and he may have used this language in refully disscussed, and it was held that the law gard to a family of children surviying his wife. makes no such presumption. This was held to It cannot be fairly regarded as an admission by apply to civil and criminal cases alike. This him that the first wite was then living. The question was also discussed at length by Field, word family in common discourse, is frequently J., in a case (Montgomery v. Beavens) tried be applied to children alone. There is no testimony fore him in the United States Circuit Court for as to the age of the first wife, a most material California. He reviewed several of the English circumstance to be considered in passing on this cases considered in In re Phene's Trusts, as well point. We cannot perceive that this evidence as this case, and came to the conclusion that the furnished a reasonable inference that the first law as declared in England in the case of Phene's wife was alive in July, 1880, so as to establish Trusts was different from the law which obtains the guilt of the defendant beyond a reasonable in this country; stating at the same time

stating at the same time doubt. In our judgment the verdict is not susthat when this presumption of the continuance tained by the evidence and a new trial should of life conflicts with the presumption of inno- have been granted on this ground. We are also cence, the latter prevails. In the opinion deliv- of opinion that the Court should have advised ered in the case referred to, the learned Justice the jury when the prosecution rested to acquit says: “But the law as thus declared in Eng- the defendant. land 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 party pared to say that we should hold that the objec

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tion was not well taken. This ground was taken bales of cotton, and was on his way to Austin; on the motion in arrest of judgment, but it was had also about five dollars in money with him ; then too late to urge it. It had been waived by it was about one hour after sun up the man failure to demur specially. (Secs. 1004. 1012, came out of the brush without any coat on and 1185, Pen. C.)

bareheaded, also had on goggles ; told the witJudgment and order reversed and cause re ness that he had a sick friend there and asked manded.

witness to take him on his wagon to Round

Rock; witness assented and started to help him ROBBERY-CIRCUMSTANTIAL EVIDENCE bring the sick man when he (the man with

goggles on, (Irew a pistol on the witness and said -CHARGE OF COURT-XEW TRIAL.

for him (witness) to lie down, that he was going

to tie the witness and take his wagon and team COURT OF APPEALS OF TEXAS.

and cotton to Round Rock and sell them ; says he

was frightened and thought at first that he might Felix W. ROBERTSON 1. THE STATE OF TEXAS.

kill him and started to lie down, but raised up

before he was entirely down and told him no Held error to charge the jury in a case of circumstantial evidence, that "if you can not account for nor ex

one inan could make him do that and bluffed plain the facts and circumstances detailed before you, him off, he began to back and said if he (the upon any reasonable ground consistently with defend- witness) would promise not to say anything ant's innocence, then if you can not do this you should convict."

about it he would let him alone, and the witness

promised; witness then went back, got on his Appcal from Williamson County.

wagon and went on; sàys the man who tried to WINKLER, J.

rob him was about the size of the defendant ; This appeal is from a judgment of conviction the man had black hair; says he was working for an assault with intent to commit the offense 'four horses; two of them were paints. On of robbery, alleged to have been committeil upon cross-examination this witness said, we quote one A. C. Shamblin in Willianison County, on his language as found in the statement of facts : October 3, 1877. The trial in the court below " I do not say it was defendant who attempted commenced on January 13, 1881, and on that to rob me, because I do not know; * * * the day a jury was empaneled and sworn and the de- man that attempted to rob me had black hair fendant entered his plea of “not guilty." The and had no mustache; I do not recognize the jury returned their verdict on the 14th day of defendant as the man." January, 1881, by which the defendant was The witness, Bonner, testified that he knew found guilty of an assault with the intent to nothing about the commission of the offense excommit the offense of robbery, and his punish- cept what the defendant told him, he then proment assessed at confinement in the peniten- ceeds as follows: On Friday night of the fair tiary for a term of ten years.

week in Belton, October 5, 1877, the defendant The principal witnesses relied on by the pros- came to my rooni and called me at the window, ecution for a conviction, on the trial below, were it was 12 v'clock at night; I knew him well for A. Č. Shamblin, John Bonner and Dick' Rar. we were intimate ; he told me that he had been There were several other witnesses introduced on to Austin and Round Rock, and that near Round behalf of the State for the purpose of proving Rock he attempted to roh a man who had a isolated facts and circumstances, or for certain wagon and some cotton ; defendant said he was specified purposes.

distigured, had on goggles, and had had his hair The main facts, however, which connect the dyed by a barber in Round Rock, said he told defendant with the crime, charged against him, the man he had a wounded friend and asked him other than isolated circumstances upon which to take him on his wagon to Round Rock; that reliance is placed, is the testiniony of the three the wagoner got down and followed him a piece witnesses, Shamblin, Bonner and Ray. The from the road and he drew a pistol on the man important features of the testimony of each of and told him to give up his money and lie down these three witnesses may be stated briefly as and let him tie him, or he would kill him ; said follows:

he intended to tie the man and take his cotton The witness, Shamblin, is the person upon on to Round Rock and sell it, but saw a man whom the assault is alleged to have been com- passing along the road and was afraid the mitted. His testimony comes before the court, wagoner would see him, too, and give the alarm, free from any taint of suspicion, that it is any- so he told the wagoner he would let him off if thing else than a truthful narrative of the he would say nothing about it, which he agreed transaction as seen by himself. This witness to do; he said the man was working a paint testified that on Wednesday, October 3, 1877, on horse in his team; I know defendant is the the public road between Georgetown and Round man who came to my window and told me of Rock, and near the latter place, in Williamson trying to rob a man near Round Rock; the County, Texas, a man attempted to rob him; it Belton fair began that year on Tuesday, mile October

On cross-examination Bonner stated : I am a thicket of timber and brush on one side of the not friendly with defendant; I have, or rather road; that he had a wagon and team and four my father has employed counsel to prosecute this case: I am indicted in Bell County for rob- all probability had a deep interest in securing a bery of Toblin's jewelry store ; defendant is also conviction of the defendant. charged with the same robbery; I was arrested The witness, Ray, if left alone, proves but in the fall of 1877 and taken to Bell County; little except that he, from some cause unexdefendant told me he went to Waco after the plained, he was a willing instrument in the robbery and got a barber to remove the dye from hands of the witness, Bonner, in placing himhis hair, and said the damned barber never did self, at Bonner's instance, in a position where he get it all off his eyebrows; the defendant told could play the eaves-dropper on the defendant me this on Friday, October 5, 1877, it was 12 and overhear a part of a conversation between o'clock at night.

him and Bonner, in which it is contended that The witness, Kay, after testifying that he

the defendant made an admission tending to knew the reputation of John Bonner in the support the idea that the defendant had disneighborhood where he lived, for truth and guised himself in order that he might perpeveracity, and that it is good, says: On the night

trate this particular crime without becoming of the 4th of September, 1878, I went, at the recognized. request of John Bonner, and concealed myself in

It is not shown that the defendant had disa tree near Belton, and Bonner went off and re- guised himself, either by dying his hair or othturned with defendant, F. W. Robertson, and erwise, except by the reproduction of his midthey were talking when they came up under night admission to Bonner supported, as it is, the tree, and I heard the defendant say,

by the statement of Ray, as heard by him, from “Shamblin could not swear to me and if the

his position up a tree. negro barber swears to blacking my hair I will

It is not to be overlooked that the witness, kill him;" I know it was defendant with Bon-Shamblin, testified that the man who made the ner, for I know him well and know his voice; attempt to rob him had no mustache, whilst it is was very near him. On cross-examination hé

not shown that he had a black mustache, even said, “I thought it was about 9 o'clock when in the interview with Bonner, or in the converdefendant and Bonner came under the tree; it

sation overheard by the witness, Ray. The tesmight have been later, I had no watch; it was a

timony by which it was attempted to identify bright, moon-light night; I was in an elm tree.

the defendant with the attempt at the robbery, There was other testimony tending to show

and to avoid detection and being identified, by that the defendant was at and about Round having dyed his hair, coming, as it does, is, to Rock at a time not generally stated with dis

say the least, very meagre and unsatisfactory as

a foundation upon which to base a conviction tinctness, but evidently introduced in order to

for felony. show the proximity of the defendant to the scene of the offense at the time of its commis

We would not feel warranted, however, in setsion, as circumstances tending to connect the

ting aside the verdict on this ground alone, ex. defendant with its perpetration, These wit

cept that to perinit the judgment to stand, nesses, without exception, when the color of the

would be to sanction a precedent dangerous to defendant's hair or beara is mentioned, say it is

the citizen, when the demands of the law had red. The assaulted party having testified that

been fully complied with in other respects. In the man had black hair and no mustache, and that

this case we are unable to say that all the rights the defendant has red hair and red mustache, it

of the defendant were properly guarded in the became necessary that the State should make

instruction given to the jury on the trial below. further proof of the identity of the defendant charge is not entirely free from objection: If

In our opinion the following paragraph of the with the crime charged against him. It was evidently intended to supply this miss- facts and circumstances in evidence before you,

you can reasonably account for or explain the ing link in the testimony by showing that the defendant had disguised himself for the purpose defendant's innocence, without resorting to un

in this case, in any way consistently with the of preventing his identification, and in addition reasonable doubts and theories, then you should to his employing goggles, as the assaulted party do so and acquit him. But if you can not achad testified he had, but that he had gone to a count for nor explain the facts and circumbarber and procured his naturally red hair and stances detailed before you. in this case, upon beard to be dyed black, and this proof is at

any reasonable ground consistently with deteinpted to be supplied by the evidence of Bon

fendant's innocence, then, if you can not do ner and Ray, and in the manner above set out.

this, you should convict." In this connection, before proceeding further, A charge quite similar to the one here under we desire to express our admiration at the use- consideration, and given under like circumfulness and the necessity of right of cross-ex- stances, though not absolutely condemned in amination of a witness.

terms, was criticised unfavorably by this court, In the present case, by this means, it was de- in Estep v. The State, 9 Ct. App. 369. A developed, not only that the party upon whom the fendant in a criminal prosecution enters upon a assault was alleged to have been committed, was trial shielded by the presumption of law, that unable to identify the defendant as the guilty he is innocent of the crime of which he is acparty, bnt also that the witness, Bonner, was not cused, which presumption abides with and pro only at enmity with the defendant, but that in tects him from punishment, until his guilt is es

V.

tablished by the proofs adduced against him. portance to require a reversal of the judgment. The language of the law is this:

We have not deemed it important to discuss, in The defendant, in a criminal case, is presumed this opinion, any of the other questions presentto be innocent until his guilt is established by cd by the record and discussed in argument. legal evidence, and in case of reasonable doubt In view of the peculiar features of this case, as to his guilt, he is entitled to be acquitted and considering the meager and unsatisfactory C. C. P. Art. 727. Every person accused of an character of the testimony, together with the offense shall be presumed to be innocent until liability of the charge to mislead the jury, and his guilt is established to the satisfaction of the probability that the defendant will be able, those whose province it is to try him. P. C. on another trial, to settle, definitely, the time Art. 11.

when the Methodist meeting was held, as that We are constrained to say that with the plain fact bears upon the defence of alıbi. Taken alprinciples of the statute law staring us in the together we are of opinion the ends of justice face, it is erroneous, and especially so, in a case and a clear administration of the law, required of doubtful evidence as to guilt, for the court, by of the court below that he should have granted its charge, to direct, or even permit, the jury to the defendant a new trial, which was, in our go in search of evidence by which they can find opinion, an erroneous ruling of the court for a reasonable explanation of the facts and cir- which the judgment will be reversed and the cumstances consistent with the defendant's in- cause remanded. nocence, before they would be warranted in acquitting when the law presumes that he is innocent independent of all those facts and circum

COURT OF APPEALS OF TEXAS. stances, until his guilt is established by legal evidence. If the evidence leaves the case in- CONTINUANCE-EVIDENCE-NEGLIGENT volved in reasonable doubt as to his guilt, that

HOMICIDE-INTENT-CHARGE doubt innures to the benefit of the defendant,

OF COURT. and the law says he is entitled to be acquitted.

An instruction on the presumption of innocence and reasonable doubt is a proper and nee

John AKEN essary charge, in all criminal trials, but as a general rule, experience has demonstrated that

THE STATE OF Texas. a charge embracing language of the Code, C. C. P. Art. 727, without elaboration or attempt at

Even a first application for continuance, though in explanation, is amply sufficient. Massey v. The

conformity with the requirements of the statute, is now

no longer a matter of right, but its truth and merit is State, 1 Ct. App. 563, and see other cases cited in addressed to the sound discretion of the trial court, and note 215, p. 538, Clark's Criin. Law. The charge

if there overruled will be considered by that court again

on motion for new trial in connection with the other of the court, whilst in other respects, so far as evidence in the case. observed, was an admirable as well as correct enunciation of the law of the case, was, in our

Appeal from Milam county. opinion, marred, and the jury liable to be led to WHITE, P. J. an erroneous conclusion to the injury of the de- On the 10th day of January, 1876, the indictfendant. Except in cases where the inculpa- ' ments in this case was returned into court chargtory facts depend upon circumstantial testi- ing, appellant with the murder of one J. B. mony, a charge on the presuniption of innocence Scobee in Milam county, on the 7th day of May, and reasonable doubt, considered in the language 1874. He was brought to trial on the 17th day of the statute, was unifornily held sufficient, but of May, 1881, and on the 21st a verdict was renwhen a conviction depends alone upon circum- dered against him for murder in the second destantial evidence, a proper charge on that char- gree, affixing his punishment at fifteen years in acter of evidence is required by the rulings of the penitentiary. this court. Burr v. The State, decided at the An application for continuance was made by present term of this court, and authorities there defendant which was controverted, as to dilicited. It seems, from the supplemental motion gence, by the district attorney supported by affiof the defendant for a new trial, and from affida-r davits as provided by statute. C. C. P. Art. 564. vits appended, that it was a matter of considera- This application was overruled by the court, this ble moment, as bearing upon the main defence ruling having been duly reserved by bill of exof the accused, that of alibi, to determine whenceptions is the final error complained of. Even a certain Methodist quarterly conference or a first application, though in conformity with camp meeting came on, and that this was an in- the requirements of the statute, is now no loncidental question whieh was not developed until ger a matter of right, but its truth and merit is after the trial had begun.

uddressed to the sound discretion of the trial It is not seen that the testimony bearing upon court and if there overruled will be considered the subject was of a nature which the defendant by that court again on motion for new trial in or his counsel could reasonably anticipate in connection with the other evidence in the case. preparing for trial, still we feel assured that, in C. C. P. Art. 560. subdivision 6. In passing upon strictness of law, the testimony said to be newly the refusal of a continuance asked on account of discovered, was of sufficient materiality and im- the absence of a witness the evidence adduced

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