Appellant again offers the contention that the wife of the second marriage was an accomplice, and therefore the court should have charged such, and also charged that her testimony should of necessity have been corroborated, etc.
The reason for the necessity of such charge, so appellant says, was because after learning of her bigamous marriage this wife continued to live with appellant for a short time. It might have been true that this bigamous wife was an accomplice to the offense of their unlawful living together after she had found out that he was not lawfully married to appellant, but the testimony shows that at the time the marriage occurred she thought that appellant was a single person, and, under the law, entitled to enter into the contract of marriage. She was not an accomplice witness to the bigamous marriage. Her testimony shows that she had been informed by appellant that he was a single man; that he had gotten his divorce, and was capable of legally entering into the marriage contract. It also seems that he continued to thus deceive his bigamous wife after she had questioned him about having a legal wife then living.
We see no reason for charging the jury relative to this witness being an accomplice. The offense of bigamy is complete when bigamous marriage occurs, regardless of subsequent cohabitation. Weir v. State, 115 Tex.Crim. Rep., 26 S.W.2d 271.
Appellant's defense was that he believed that he had been divorced from his first wife, and that he was entitled to an acquittal on the basis of a mistake of fact. He bases this defense on the following occurrence: He was in some unnamed town in Oklahoma sometime in 1938, while on his way to Detroit; he was in a drug store alone, and he asked the drug store man if he could direct him to a reliable attorney, and the drug store man said there is one right here, pointing to a man at a nearby table, and appellant then related his troubles *Page 516 to this man, whose name was Reed. This lawyer lived at Ardmore, Oklahoma. Appellant paid this man $10 and went on his way. Appellant produced a letter at the trial purportedly from this man Reed; the envelope, however, he stated had been destroyed, the letter reading as follows:
"Ardmore, Oklahoma "Nov. 5, 1938.
"Dear Mr. McDonald,
"In regard to the inclosed form, Sign it your self and have one other to sign it also, As this is required on all out of State work.
I wish to Also call your attention to the Bal-, on which you Owe, The Same being $10,
I can of corse useit as son as I can get it,
Do as I have Instructed you and I will stand between you and all other trouble.
"Attorney At Law, L. J. Reed."
It also appears from the record that appellant had had previous experiences in matters of divorce, and the jury did not see fit to believe his defense of a mistake of fact when he contracted his marriage with this fourteen year old girl.
We see no reason for enlarging on what we have already said in the original opinion relative to the court's charge on a mistake of fact as provided for in Article 41, Vernon's Ann. P. C. We think the charge given was probably more liberal than contemplated by the above statute. See Adams v. State, 7 S.W.2d 528.
We adhere to the views expressed in our original opinion herein.
The motion is overruled.
ON SECOND MOTION FOR REHEARING.