Chancelor v. State

DAVIDSON, Judge. Bigamy is the offense; the punishment, two years in the penitentiary. Proof of the first marriage was made by facts showing that appellant and Jewel Miller lived together and held themselves out as husband and wife. This marriage occurred in 1943 and continued until some time in 1945, when the wife returned to the home of her father, where she has continued to reside and was so residing at the time of trial. On June 16, 1945, appellant married Bertha Fontenot. The State charged that marriage to be bigamous, and it is for this appellant stands here convicted. The facts stated constitute the State’s ease and are deemed sufficient to sustain the conviction. Appellant did not testify nor did he offer any affirmative defense other than that suggested by the fact that the first, or lawful, wife had returned to and was living with her father prior to the alleged bigamous marriage. Appellant insists that he was entitled to have the jury instructed upon the law of circumstantial evidence. Proof of both marriages, as well as the fact that the lawful wife was living at the time of the second marriage, was by direct testimony and constituted a prima facie case of guilt. The State’s case was therefore not one of circumstantial evidence. As a part of the charge, the jury were instructed as follows: “You are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant, James Earl Chancelor, on or about the 16th day of June, 1945, did then and there enter into a marriage relationship with Bertha Fontenot, and that at the time of said marriage relationship he did then and there have a former wife, to-wit, Jewel Miller [100] Chancelor, then living to whom he, the said defendant, James Earl Chancelor, had theretofore been and was then and there legally married, then the burden of proof is upon the defendant to prove by a preponderance of the evidence that at the time of entering said marriage contract with Bertha Fontenot, that the said Jewel Miller Chancelor was absent from the State, had abandoned him, or that they had been divorced.” By this charge the trial court was apparently attempting to apply the provision of Art. 491, P. C., relative to defensive matters to the crime of bigamy. That' the charge was subject to the appellant’s objection that it shifted unduly the burden of proof is apparent. The defensive issues arising under Art. 491, P. C. are upon the accused to establish but these are not required to be by a preponderance of the evidence. These are deemed established when the jury believes or entertains a reasonable doubt as to the existence thereof. No question exists, then, but that the charge was not a correct presentation of the defensive issues arising under Art. 491, P. C. The question remains, however, as to whether such a charge should have been given at all. There is no' testimony, circumstantial or otherwise, that the first wife was out of the State or remained absent for five years or that she and appellant had been divorced prior to the bigamous marriage, as provided by Art. 491, P. C. There being no testimony warranting the giving of the charge mentioned, we are at a loss to perceive how appellant was or could have been injured thereby, for any charge upon the defensive issues mentioned was more than the facts warranted. No reversible error appearing, the judgment of the trial court is affirmed. Opinion approved by the Court.