In this case appellant was indicted by the grand jury of Dallas County, charged with the offense of bigamy. Upon conviction his punishment was assessed at confinement in the penitentiary for a period of five years.
1. Appellant filed a motion to quash the indictment. The indictment follows the form by Mr. Bishop in his work on Forms, section 862, and is in accordance with the decisions of this court in McAfee v. State, 38 Tex.Crim. Rep.; Bryan v. State, 54 Texas Crim. App., 18; Vinsant v. State, 42 Tex. Crim. 413.
2. The next question raised is that juror Frank F. Sliger was a member of the grand jury that returned the bill of indictment against appellant. Appellant alleges in his bill that he did not learn this fact until after the jury had been sworn and empaneled to try the case, and he then called the court's attention to it, when the court asked appellant what he desired done in the premises, when appellant demanded that the entire jury empaneled be discharged. This the court declined to do, but again asked what they desired, when counsel replied: "We ask that the law be complied with." The court thereupon ordered the case to proceed. In the qualification of this bill it is shown that, on hearing the motion for a new trial, this juror was *Page 204 sworn, and testified he was not with the grand jury at the time this bill was under consideration, and had never heard of the case. He was absent at New Orleans two weeks during the session of the grand jury, and this must have been one of the cases examined, bill found and returned during his absence.
As thus qualified, this bill presents no error. This is not a disqualification, but ground for challenge. The defendant examined the juror on his voir dire and accepted him. When he learned that the juror was a member of the grand jury that returned the indictment, he did not challenge the juror individually, but only requested the entire panel be discharged. Inasmuch as it is shown that the juror was not present when the case was considered and bill returned, no possible injury resulted to appellant. This question is treated at length in the case of Self v. State, 39 Tex.Crim. Rep., in which it is held that this presents no ground for a new trial, in the absence of injury shown.
3. In his third bill of exceptions it is alleged that the jurymen talked over the telephone to some one after being empaneled on the jury. It seems some members of the jury talked to their families. In the qualification of the bill the court says: "On the motion for a new trial the evidence of these jurors and the members of their families was taken, and all they had done was let their families know they were on the jury." As thus qualified the bill shows no error. In Early v. State,51 Tex. Crim. 382, 103 S.W. Rep., 868, it is held that, where a juryman talks over the telephone, the burden is on the State to show no injury. The State in this instance assumes the burden and shows no possible injury. See also Speer v. State, 57 Tex. Crim. 297, and Parshall v. State, decided at this term of court but not yet reported.
4. In his next bill of exceptions defendant complains that Minnie Robison was permitted to testify. Minnie Robison is the person appellant is alleged to have married while his first wife was living, and the contention is made that she should not have been permitted to testify until positive proof had been made that defendant was a married man and his wife living at the date of his marriage to Minnie Robison. Article 348 of the Penal Code provides that in trials for the offense of bigamy proof of marriage by reputation shall not be sufficient. In construing this article of the statute this court has held: "Although general reputation alone is not sufficient proof of marriage, yet, taken in connection with the evidence of cohabitation and defendant's admissions, it is competent to support a conviction for bigamy, provided the jury is satisfied beyond a reasonable doubt of the fact of a valid marriage." Dumas v. State, 14 Texas Crim. App., 464; Adkisson v. State, 34 Tex.Crim. Rep.. The admission of the defendant that he is a married man, and that his wife still lives, is competent evidence against him. Gorman v. State, 23 Tex. 646; *Page 205 Boger v. State, 19 Texas Crim. App., 91; Bell v. State,33 Tex. Crim. 163.
T.M. Millican testified that he knew defendant and his first wife, and they had lived on adjoining lot to him; that he knew defendant and his first wife before he married Minnie Robison; that defendant's first wife's maiden name was Laura Russey, and that he knew her father, Dr. Russey. That at the time defendant married Minnie Robison he had a wife and five children. That the first wife was living three months prior to this trial and subsequent to the second marriage. That he had seen defendant at the home of his first wife subsequent to the marriage with Miss Robison; that is, at the home of the woman he had been living with as his wife. That he remembered hearing of the marriage of defendant to Miss Robison; about that time defendant had left his family. He was gone four or five weeks, when he appeared again. They were recognized in the community as man and wife. He testified he was in their home a number of times during appellant's sickness. That after defendant was arrested, charged with this offense and given bond, he saw him with his first wife at their home again, and he was around the place like a man generally is.
On cross-examination he testified: "I know they were man and wife just like I know any other people are man and wife." Mrs Millican testified that defendant's first wife was named Laura Russey prior to her marriage. That she knew her as Mrs. Bryan; that they had five children, and they had lived neighbors to her for eighteen months. That she saw him frequently at the home of Mrs. Bryan after his arrest charged with bigamy. That by general reputation she knows that defendant and Mrs. Laura Bryan are man and wife, and saw them living together in the same house. That she had seen Mrs. Laura Bryan about two months prior to this trial.
H.G. Musick testified that he and defendant formerly worked together for the Fort Worth Oil Company, and defendant introduced the first Mrs. Bryan to him as his wife. That she frequently came there and brought defendant his lunch. From general reputation he knew them to be man and wife.
T.J. Cartwright testified that he knew the defendant and the woman he was living with as his wife, and they bought goods from him. They would come in the store together. "He said he would like to run an account with me weekly, and that he would send me his check every Saturday or Monday. He wanted me to furnish his wife with groceries, and that he would send his check to me, and that I could take out of the check whatever the grocery bill came to and give the balance to his wife." He further testified that the first wife was living at the time of this trial.
This, we think, sufficiently showed by general reputation, by his admission to Musick and Cartwright, and by the fact that he lived with her and she had children which he recognized and treated as his *Page 206 children, is sufficient to make such a prima facie case that he was married to Laura Russey as to render admissible the testimony of Minnie Robison, and the bill presents no error.
5. Neither was there error in permitting Minnie Robison to testify that she married appellant in Dallas on November 22, 1907, Rev. Geo. Truett performing the ceremony. That he represented himself as an unmarried man. That they lived together in Dallas until the 18th day of December, when she left him. That he confessed to her that he was married and had five children at the time he married her. She stated that defendant told her the maiden name of his first wife was Laura Russey, and they lived at Riverside, in Fort Worth. Neither was it error to permit her to identify her signature to the marriage certificate of herself and defendant. If the evidence was sufficient to show that Miss Robison was not the legal wife of defendant and her testimony admissible, it can not be contended that the evidence is insufficient to sustain this conviction, and there was no evidence calling for a charge that she was particeps criminis or an accomplice, for she testifies she did not know he was married at the time she married him, and there is no evidence to suggest that she did know it.
6. Neither was there error in admitting a certified copy of the marriage license, dated December 12, 1896, issued to P.A. Bryan and Laura Russey, with the minister's certificate that the marriage occurred on December 13, 1896. This had been filed in the office of the county clerk of Dallas County in February, 1897, and duly recorded. Defendant had been given the notice required by law and copy filed more than three days prior to this trial. It is true no witness had been introduced to how that defendant was the identical person named in that marriage license, but this went to its weight and not to its admissibility. The license and return showing a marriage to Miss Robison were also admissible for the same reasons.
7. These are all the bills of exception in the record, but appellant has filed in this court an affidavit that he presented to the judge three other bills of exception, and attaches copies of such bills to the affidavit. What action the trial court took on these bills it is not made to appear in the affidavit, the counsel only certifying that he delivered them to the court, and on numerous occasions asked the court to approve or disapprove them, but could not get him to do so. By examination of the copies of the bills attached to the affidavit and motion forcertiorari, we find that number three relates to the testimony of the witness T.M. Millican, and all the testimony is admissible except the statement, "she introduced herself as Mrs. Bryan." This, by reference to the statement, is shown to have been brought out by appellant on cross-examination, and as there was no motion to exclude same it would not present reversible error.
The next bill relates to the testimony of Mrs. Millican. Declarations and communications between husband and wife are admissible *Page 207 when heard by a third person. A person can always testify to the acts and conduct of the person on trial showing intimacy between him and his alleged wife in a prosecution for bigamy. This one does from their own knowledge, and is not hearsay.
Neither does the other bill present reversible error. It is always permissible to show a specific act of intimacy between one who is prosecuted for bigamy and the woman who is alleged to be his wife, and, as before stated, conversations between husband and wife overheard by a third person are admissible, and especially so when the conversation is addressed to the witness testifying and in the presence of each other. So if we should consider these bills they do not present any reversible error.
8. There were a number of special charges requested, but we are of opinion that the court's main charge submitted all the issues as fully as required, and there was no error in not giving them.
Affirmed.
[Rehearing denied October 11, 1911. — Reporter.]