The defendant was convicted upon an indictment, the charging portion of which is as follows: “did then and there unlawfully marry Rebecca Garner, he, the said Watson, then and there having a wife then living.” Exceptions to this indictment were overruled. The exceptions were, that it did not put the defendant upon notice of the charges against him, in this: that it does not charge the name of the alleged first wife of the defendant. While this indictment does not follow established precedents (2 Whart. Prec. Indict, 985; 2 Archibold’s Cr. Pr. and PL, 1813; May v. The State, 4 Texas Ct. App., 424), still we are not prepared to say that it is a bad indictment.- It charges the offense substantially in the language of the statute, *81and ordinarily it is sufficient to do this. The weight of authority is that it is not necessary to state the name of the first wife. (3 Whart. Free. Indict., 985, note c.) We are of the opinion that the exceptions to the indictment were properly overruled.
The defense relied upon by the defendant was, that when he married the second wife he believed that his first wife was no longer living. In support of this defense, it was proved that the defendant resided in Travis county, and his first wife resided in Bastrop county; that, a short time before he married the second wife, he received a letter by mail, signed “John Crofford,” and purporting to come from Bastrop county, informing him of the death of his first wife. “John Crawford” (the supposed writer of this letter) testified that he did not write it; that he lived in Bastrop county, near defendant’s first wife, and was well acquainted with defendant; that his impression was, when he first saw the letter, that it had been written by defendant’s first wife, but he had told Jake Crawford, his uncle, and a brother of defendant’s second wife, that the handwriting of the letter looked like that of his (John Crawford’s) wife, or that of Mollie Martin-dale. The witness Jake Crawford saw the letter, and being satisfied that it was genuine, and that defendant’s first wife was in fact dead, he consented to his marriage with his sister. The second wife also testified that she saw the letter, and, believing that it was all right, married the defendant. It was also in proof that the defendant was illiterate—could neither write nor read, and was very simple.
Under this state of facts, the court charged the jury as follows:
“A mistake by defendant as to the death of the first wife before the second marriage, if such mistake did not arise from the want of proper care, will excuse an act committed under such mistake. By proper care, which the defendant must use, is meant such care as ordinary men would use to ascertain the truth of a report of like importance upon which they may be required to act. If the mistake is shown to have existed, and that it was not caused by want of such proper care, the jury will acquit. If by such proper care defendant, from the testimony, could have corrected the mistake, then the mistake, if it existed, will avail nothing as a defense; but the jury may consider the belief by defendant of his first wife’s death, if such belief be shown, in mitigation of punishment, should the defendant be convicted.”
*82It is insisted by defendant’s counsel that the foregoing charge is erroneous, and, after a careful consideration of the question, we are of the opinion that the latter clause of the same; which undertakes to instruct the jury as to the meaning of the words “proper care,” is erroneous, and should have been omitted from the charge. We do not think that the court was called upon to explain these words to the jury. They are not technical words having a fixed legal meaning unknown to the unprofessional minds, but are plain, common, well understood words, as easily comprehended as any used in the statute.
The Penal Code provides as follows:
“Art. 45. JSTo' mistake of law excuses one committing an offense; but if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense.
“Art. 46. The mistake as to fact which will,excuse, under the preceding article, must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct; and it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense.”
We think the learned judge should have given in charge to the jury, substantially, the above articles, leaving the jury to determine from the evidence in the case whether or not, under all the facts and circumstances of that particular case, the mistake of the defendant, if he was mistaken, arose from a want of proper care on his part. The question as to proper care, we think, depends upon the facts in each particular case. Ho general rule can be prescribed in relation to it. What would be proper care in one case might be gross negligence in another. What would be proper care when considered with reference to one individual might not be when applied to another. The learned judge, in the charge under discussion, defines “proper care ” to be such as ordinary men would use, etc. Why not also explain to the jury what constitutes an “ ordinary man ?” Was the defendant an “ordinary man?” Were the jury any more competent to determine this question without instructions from the court than they were to determine the question as to what would constitute proper care ? We think the charge of the court was improper when applied to the evidence in this case, in so far as it instructed the jury in the meaning of the statutory words “proper care,” and that it was calculated to injure the rights of *83the defendant; and because of this error the judgment is reversed and the cause is remanded.
Reversed and remanded.
Opinion delivered October 25, 1882.