The proper decision of this case becomes of more importance for that it is one of first impression in Texas. *Page 267 I can not agree to the opinion prepared by Judge Hawkins, agreement with which is suggested by Judge Morrow. I think same adopts an interpretation of the law which, however unintentional, may lead to the establishment of a precedent of grievously hurtful consequence, and same may be used to give law-breakers a free hand and put society at the mercy of freebooters abroad on our social seas in this day of much talk of increasing sexual crime.
Riley Hopson had a wife living in Texas. He met Louise Allison in Wichita Falls, courted her, proposed marriage, was accepted, and then took Louise across Red River for some reason where they went through a form of ceremonial marriage in Oklahoma, after which they came at once back to Wichita Falls, Texas, set up housekeeping as man and wife, publicly acknowledged and held each other out as such, cohabited, became the parents of a child, and otherwise agreed to take and be to each other husband and wife. Finding out the fact of the former marriage, appellant was indicted and convicted of bigamy. He interposed the defense variously raised, that our bigamy statute, Art. 490, P. C., makes the second marriage bigamous only when same takes place "In this State," and that this marriage took place in Oklahoma, hence the trial court was without jurisdiction. The State replied in effect that "In this State" appellant and the girl agreed to take each other for husband and wife, and did so; that this was accompanied by all those elements which make a complete common-law marriage, — hence there was a bigamous marriage "In this State." The court's charge submitted only this theory, and the jury were therein told that it was not necessary that there be any form of ceremony if the parties in Wichita County, Texas, agreed to take each other for husband and wife, and from that time on did live professedly in that relation. The indictment simply alleged that appellant, having a living wife on April 22, 1927, did unlawfully marry Louise Allison in the County of Wichita, State of Texas. Appellant asked a special charge, which was refused, to the effect that he should be acquitted because the testimony shows that he married the second time in Oklahoma.
My point is that what took place in Oklahoma between these people was a thing wholly void, an idle gesture, which required no court order to vacate or annul it, and that the opinion of the majority herein in effect vitalizes a corpse, gives substance to a shadow, sanctity to a void ceremony, by means of which holding *Page 268 this man may take advantage of what was his own wrong and fraud from its inception; and that he may use it for a defense against a crime clearly committed in this State, — and not only he, but hereafter others like him.
This court, and all others, joins the text writers in harmonious declaration that a bigamous marriage isvoid, not merely voidable. In Bethany v. State, 91 Tex. Crim. 59, upon citation of many authorities, Judge Morrow originally and Judge Hawkins on rehearing, said: "The wordMarry used in the statute, as applied to the second marriage, does not mean a valid one. All bigamous marriages are void." In its able brief herein the State cites People v. Mendenhall,119 Mich. 404, 75 Am. St. Rep. 408, in which the contention was made on behalf of the defense, as is made here, that the accused having a living wife could not be held guilty of bigamy upon proof of a common law second marriage. The court held otherwise. We quote from that opinion:
"It is a settled rule in this State that a marriage in fact may be shown by proof of an agreement between two persons of opposite sex to take each other presently as husband and wife, consummated by cohabitation * * * it follows that such informal agreement constitutes a marrying within the meaning of Section 9280 of 2 Howell's Statute. It is none the less a marrying because one spouse is already married. It is true of every case of a bigamous marriage that the second marriage is void and as was stated in People v. Brown, 34 Mich. 339, 22 Am. Reports, 531, it is the entering into a void marriage while a valid marriage exists, which the statute punished.
"In Bishop on Statutory Crimes, Section 592, it is said: 'In a state where mutual consent alone constitutes matrimony, as with the first marriage, so with the second — no added formalities need be shown.' "
A thing that is void is of no effect; a nullity ab initio. See Cummings v. Powell, 8 Tex. 80. A thing that is void is as if never done, to all purposes, so that all persons may take advantage thereof. Franklin v. Kelley, 2 Neb. 79; Hone v. Woolsey (N.Y.) 2 Edw. Ch. 289. "A void judgment is in legal effect no judgment. By it no rights are devised. From it no rights can be obtained, it being worthless in itself. All proceedings on it are equally worthless." Words Phrases, Vol. 8, p. 7340, citing many authorities.
In the face of all these and countless similar holdings, the majority have here announced the doctrine that what was done by this *Page 269 appellant in Oklahoma may be invoked by him and used as a bar to prevent the legal consequences of the crime committed by himin Texas, — of consummating a bigamous common-law marriage in this State. I maintain the contrary.
It would doubtless be at once admitted that if A having a wife then living, should marry, in any way made legal, a dozen different women in succession, — he might be prosecuted and convicted for each such marriage, for bigamy. To be consistent, the majority of this court would have to lay down the rule that A, prosecuted for bigamy committed in this State under a ceremonial second marriage, might defend successfully on the proposition that he entered into the marriage relation under the terms of a common-law marriage at a prior time in another State. Indeed, drawing the lines of legitimate deduction yet closer, we would have to hold in line with the majority opinion, in a case of a marriage which would be lawful but for a former living spouse, — the person prosecuted for bigamy in any county in this State might defend by proving that in some other county of this State, at a prior time, the parties to such alleged bigamous marriage had entered into the same illegal relation. This brings me to the observation that it would hardly be contended that A, having a living wife, would not be guilty of bigamy in each county in which he might marry, in any way made legal, a separate and different woman each time; but we must conclude as this opinion affirms, that if for any reason satisfactory to them A, having a lawful wife, weds by ceremony in three different counties to some woman, — he could be prosecuted for bigamy but once, and that once of necessity in the county in which the first offense was committed. I confess this to me is curious reasoning. Surely when A marries unlawfully in C county, he violates the law against bigamy. Such ceremony would create no contract, establish no relation, affect no rights further than to be a thing forbidden by law, and for which A may be punished. I can not see for the life of me why this court should undertake to say that the law once infracted must forever remain broken as to this man's bigamy with this woman, so if for some reason satisfactory to them they thereafter go to D county and other counties and are there ceremonially married, the courts and officers would be impotent to prosecute them and punish them forsooth because of that void, null, worthless, illegal thing which they attempted in the first county where they tried to get married.
Suppose by way of illustration that Louise had gotten a divorce from Riley before she found out about wife No. 1, — and when *Page 270 as is frequently the case had married him again, it seems clear that under the opinion of the majority Riley would be guilty of another offense of bigamy, for that the law having annulled and vacated the Oklahoma marriage, the parties would be free to commit bigamy again. In my opinion such conclusion would be wholly fallacious. There would be nothing for the law to vacate or annul. In no legal sense was what was done by the ceremony that was performed in Oklahoma valid, but on the contrary it was void ab initio, and the judgment of a dozen courts setting it aside, breaking bonds which never bound, could not add force to the fact of such nullity.
The way to stop crime is to enforce the law. If A marry one woman bigamously in different countries, states or counties, he should be punished just as he should if he married different women each time. It is unquestionably true that if A be once tried legally and the State attempt a second prosecutionfor the same offense, then and not until then, in the opinion of the writer, can A raise and thrash out the question of autrafois acquit or convict, which issue depends for settlement upon oneness of offense in fact and law. In the case before us the majority hold that we may raise the question and permit A to go free behind a smoke screen, a man of straw, whose origin and framework has no substance further than the proposition that having done wrong in Oklahoma, he is free now for all time in Texas.
The case of State v. Ray, 151 N.C. 710, is cited in the majority opinion as supporting the contention there made. The already length of my opinion compels short discussion. The opinion in the Ray case was by a divided court, the learned Chief Justice dissenting in a most unanswerable argument. Admittedly the majority opinion in that case overruled a recent unanimous contrary opinion by the same court. To my mind the only things in said opinion in anywise supporting the conclusion reached by the other members of this court, — are dicta. The facts in that case showed that Ray married E. T. in North Carolina; later moved to Indiana, where he obtained a divorce from E. T.; that later in Virginia he married A. B. and returned with her to North Caroline where they lived for three years and then separated. On his trial for bigamy the State combated the legality of the divorce obtained in Indiana on two grounds, viz.: lack of jurisdiction, and fraud. It appears from what has been stated that the facts in that case are very different from those before us in the instant case. Likewise the law of North Carolina here involved was wholly different from ours. The law of *Page 271 that State provides that if one having a living spouse married another person in North Carolina or elsewhere, such offender should be guilty of bigamy, etc., and further provided that the case might be tried in any county where apprehended as if the offense had been actually committed in that county. Upon the authority of Cutshall v. State, 110 N.C. 538, it was held in the Ray case that one could not be convicted for a bigamous marriage occurring beyond the borders of North Carolina, and that the law was unconstitutional when it undertook to prosecute one for bigamy dependent upon a marriage which took place out of the State. It was shown in the opinion in the Ray case that there was a count in Cutshall case, supra, in the indictment which charged that after a bigamous marriage outside the State, the parties came back into North Carolina and lived together several years as husband and wife. Also that the Supreme Court held that the trial court rightly quashed said count because there was no such provision in the statute. This holding was approved in Ray's case, supra.
The case referred to is just enough like the case at bar to create confusion. There was no effort in that case to predicate conviction for bigamy on a common-law marriage entered into in North Carolina. Therein lies the fundamental difference between that case and the one before us. Here the State relied entirely upon a common-law marriage entered into in this State. In the Ray opinion the court was confessedly ruled by the prior case of Cutshall v. State, supra, in which the only count suggesting a prosecution even akin to the one now before us, charged that the bigamous marriage took place in another State, — thus showing that the State was depending upon a marriage which took place outside the State of North Carolina. As above indicated, this difference wholly distinguishes the Ray case and makes it of no value as authority here. Examination of that part of the opinion quoted in the majority opinion in this case shows that there is constant reference to a bigamous marriage outside theState. If in the instant case the indictment had alleged, and the court had followed that by his charge, and the State had relied for a conviction upon proof of a bigamous marriage consummated in Oklahoma, and followed by a living together in Texas, there would be a similarity between the Ray case and the instant case. Such, however, was not the case. The State here was not concerned about appellant's past misdeeds, neither did it rely upon same, but charged direct a bigamous marriage under the common law entered into in Texas, and this theory was set out in the charge *Page 272 and found to be true in fact by the jury. I do not attach any importance to chance remarks of the young woman in question in reference to any set agreement to live together as husband and wife in Texas. The proof overwhelmingly shows there was such agreement and such fact. I think the judgment should be affirmed.
I respectfully record my dissent.