Appellant was convicted of bigamy. The indictment charged that he married Nellie May England in Camden County, New Jersey, on December 4, 1905, and had her for his wife, and while she was living, on May 1, 1912, in Fayette County, Texas, unlawfully married and had for his wife one Irma E. Heilig, and on and afterwards did unlawfully and feloniously have both of said women for his two wives at one and the same time. *Page 87
Appellant's motions for a continuance were overruled and he was forced to trial on May 11, 1914. On the trial before the court and jury, he admitted the marriage to and having for his wife said Nellie May England as alleged, and while she was living married Miss Heilig, as alleged, and afterwards he had both of said women for his two wives at one and the same time and that both were living and are now living. He made these admissions subject to his defense. The State, upon this admission, which proved its case in full, rested.
Appellant's sole defense was that he was laboring under the mistake of fact that his said wife Nellie May had procured a divorce from him before he married Miss Heilig, and that this mistake of fact did not arise from a want of proper care on his part.
Under this condition the burden was on him to establish his said defense, for article 52, Penal Code, specifically enacts: "On the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission." See also the decisions noted under this article of the Code. There are many others to the same effect.
However, this provision, and no other, of the law requires that an accused shall establish his defense beyond a reasonable doubt. On this subject the court gave this charge:
"You are further instructed that, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant had been informed that his former wife was divorced from him when he married Irma E. Heilig, and if you further find that defendant believed such information to be true, and that such belief did not arise from a want of proper care on the part of the defendant, or if you have a reasonable doubt as to whetherthe defendant was so informed and so believed, then you will acquit him; however, should you find from the evidence in this case, beyond a reasonable doubt, that such belief, if any, on the defendant's part arose from a want of proper care on his part, then the defendant can not be acquitted on the ground of a mistake of fact." By a timely objection, properly made and evidenced by a proper bill of exceptions, appellant specifically excepted to this charge, among other reasons, because it placed a greater burden upon appellant than the laws of this State do as to the proof of his defense; and because it required greater and more conclusive proof of his defense than the law requires.
There is quite a difference between the burden of proof and the proof establishing a fact beyond a reasonable doubt. While appellant had the burden of proof to establish his said defense, he did not have to do so beyond a reasonable doubt which this charge, we think, clearly required, taken as a whole. For this error the judgment must be reversed.
The disposition of the case makes it unnecessary to pass upon whether or not the court erred in overruling appellant's motion for a continuance and not granting him a new trial after the conviction, because thereof. This matter doubtless can not arise on another trial. However, the *Page 88 proposed testimony of Miss Heilig and the witness Barton would be admissible, as it was stated in said motion they would give.
The issue being as stated above, and after the State had rested, the appellant took the stand. He testified fully to the same effect as his admissions upon which the State rested. He then further testified to make out his defense that after he left his New Jersey wife and before he married Miss Heilig, his New Jersey wife wrote to him that she had procured a divorce from him. He claims he showed that letter to Miss Heilig and when he married her he turned that, with other letters from his New Jersey wife, over to her, and that that letter and others had been lost or destroyed. That he relied upon, and believed the statements in that letter and in good faith married Miss Heilig. As a necessary part of his defense he had to show this his mistake about his New Jersey wife having procured a divorce from him did not arise from a want of proper care upon his part to discover the truth. He undertook to do this by his testimony to a considerable extent, unnecessary and probably improper, to here state. When he was turned over to the State for cross-examination under such circumstances, clearly the State had the right to show that he had two children by this New Jersey wife, where they and their mother lived, and his knowledge thereof and his movements with reference to his traveling around and being in close proximity to them, so that the jury could determine whether or not he had the opportunity to ascertain the truth and that his mistake did not arise from a want of proper care on his part. Especially was this true on cross-examination, for this would materially aid the jury in arriving at a correct verdict.
Also clearly under the circumstances and in view of this testimony on direct examination and especially as to the contents of the letter he claimed to have received from his wife notifying him that she had procured a divorce from him, did the State have the right to cross him as to the contents of that letter and develop from him, if it could, that he was mistaken about the contents of that letter and it was not as he claimed, but otherwise.
On his cross-examination, the State further showed by him that before his marriage to his New Jersey wife he had married a woman at Saginaw, Michigan, and that prior to his marriage to the New Jersey wife he had been divorced from the Saginaw wife. For the purpose of showing the diligence he had used to ascertain the fact of his divorce from the Saginaw wife, the State, on his cross-examination, had him testify that prior to his marriage to the New Jersey wife his sister had written to him that his Saginaw wife, in effect, had a divorce from him and that she had remarried, and in the same letter in which she gave him this information, she also inclosed to him a certified copy of the divorce decree that his Saginaw wife had procured. The original paper thus sent to him by his sister and received by him was produced, identified by him as that paper and on the issue, and that only, of whether or not he had used proper care to ascertain whether his New Jersey wife had procured a divorce from him before he married Miss Heilig, *Page 89 the court permitting that paper, the certified copy of the divorce decree by his first wife against him, to be introduced. It was admissible for that purpose, being so limited expressly by the court. It is just the same as if it had not been a decree of the court, but some other information received by him upon which he relied. It would not have been admissible in the condition it was under the act of Congress for the purpose of proving that he was legally divorced from the Saginaw wife before he married the New Jersey wife, and it was not offered for that purpose as expressly stated at the time and the court expressly stated it was not admissible for that purpose but limited it to the other purposes for which it was admissible. Without reference to the decree he swore that he had been divorced from the Saginaw wife before he married his New Jersey wife. So that it was unnecessary to introduce it for establishing that fact, he having sworn to it at the time. It was wholly unnecessary to file it and give three days notice of the filing to introduce it for that purpose or any other. Clayton v. State, 67 Tex.Crim. Rep., 149 S.W. Rep., 119. So that the court committed no error in any of these matters as complained of by appellant's bills.
The court did not err in excluding from the evidence the doctor's affidavit as to the condition of Miss Heilig, and, of course, did not err in refusing to give a peremptory charge to acquit appellant because of the proof that before he married his New Jersey wife he had been married to the Saginaw wife, the evidence by his own sworn testimony showing that he was divorced from the Saginaw wife before he married the New Jersey wife.
We have not undertaken to take up each of appellant's bills and discuss them, but what we have said applies to all the questions raised by them. For the error in the charge of the court, the judgment is reversed and the cause remanded.
Reversed and remanded.