I concur in the reversal of the case, but believe my brethren are in error in not reversing the case on the last proposition discussed in the majority opinion. The State elicited, over the objection of appellant, that when he married the New Jersey wife he had a living wife in Saginaw, Michigan. Having proved this over the objection of appellant, the State introduced the decree of some court in Michigan showing the divorce. Various objections were urged to this which are acknowledged to be well taken. This decree was not properly authenticated so as to be used as the judgment of another State, nor was it filed with the records of the court so as to be used as evidence. Therefore, it was not *Page 90 evidence in the case. My brethren seek to avoid this by seeking to show it was introduced to show a want of diligence in ascertaining whether or not he was divorced from his New Jersey wife at the time he married in Texas. I can not concur with that view. When the marriage in Saginaw was proved, if the decree of the court showing a divorce prior to the time he married the New Jersey wife was relied upon, then it was necessary to have the decree properly certified as required by the statute under the Act of Congress in order to be used as evidence in the trial of this case, and was necessary to have it filed with the records of the court as required by the statute of this State, three days before the trial. This was fully as damaging as any testimony introduced in the case. When the Michigan marriage was proved this, of course, preceded the New Jersey marriage. If at the time he married in New Jersey his Michigan wife was still living and undivorced, the New Jersey marriage was bigamous; and having alleged that marriage in the indictment as a legal marriage, it must be proved. If the Michigan wife was living undivorced at the time he married in New Jersey, that was a bigamous marriage and that part of the indictment would not be sustained as it could not constitute a valid marriage. So the importance of this decree as a fact in the case, was almost paramount, because the moment the proof of the Michigan marriage was introduced, the State, in order to prove the valid marriage in New Jersey, was compelled to get rid of, in some way, the Michigan marriage, because if that was existing, — a wife living and undivorced, — the New Jersey marriage was a nullity and the State would then lose its case at once. This question was thoroughly adjudicated in McCombs v. State, 50 Tex.Crim. Rep.. In that case it was laid down as essential to the crime of bigamy that the preceding marriage, alleged in the indictment, must be a legal one and not illegal; and if that was a bigamous marriage, of course, this was not illegal, and that part of the indictment must necessarily fail. The court, it is claimed, undertook to limit this testimony to the proof of a want of diligence on appellant's part in ascertaining the fact that he was divorced from the New Jersey wife, but it was illegal testimony, and that being true, under all the decisions, the court can not by the charge, limit its effect. The error can not be thus cured. The illegality of admitted testimony can not be cured by changing its effect to some particular thought and effect in the case. If that decree had not been introduced, the State, in this particular case, had failed to make out a case against the defendant. I do not care to go over what was said in the McCombs case, supra. That case reviews the authorities and correctly decides the question and is conclusive of this case on that question. Therefore, I can not agree with my brethren on that particular phase of their opinion. If it only affected this case perhaps it would not make so much difference as it is reversed and will go back for trial in view of the decision, but the question may arise again. The ruling of my brethren ought not to become a precedent.
I think the judgment ought also to have been reversed on these bills *Page 91 of exceptions reserved by appellant. Concurring in the reversal of the case, I dissent from that part of it, and file this brief statement.
[Rehearing denied November 25, 1914. — Reporter.]