The offense is bigamy. The punishment assessed is confinement in the state penitentiary for a term of two years.
It is charged in the indictment, omitting the formal parts, "that on or about the 26th day of December, A.D., 1944, and anterior to the presentment of this Indictment, in the County and State aforesaid, J. D. Clinnard, did then and there unlawfully marry Ina Faye Hargett, he, the said J. D. Clinnard, then and there having a former wife, to-wit: Mildred Wilson Clinnard, then living, and he, the said J. D. Clinnard, had theretofore, to-wit, on the 28th day of January, A.D. 1941, lawfully married her, the said Mildred Wilson Clinnard," etc.
Appellant challenges the sufficiency of the evidence to sustain his conviction. He bases his contention upon two grounds: First, that the evidence fails to show that Mildred Wilson Clinnard, his alleged former wife, was living at the time that he married Ina Faye Hargett; and second, that the State proved that he was married to a girl named Mabel in 1933, which was prior to the time he married Mildred Wilson Clinnard, from whom he had not been divorced at the time he married Mildred Wilson, which constitutes a fatal variance between the allegation and the proof.
We are not favorably impressed with his first contention for the reason that the Sheriff of Upshur County testified that he received a certain document (presumably a letter) bearing the U.S. A. postmark January 19, 1945, and Mrs. Bessie Wilson, the mother of Mildred Wilson Clinnard, testified that she knew the handwriting of her daughter, Mildred Wilson Clinnard; that the document and the envelope received by the sheriff bore the handwriting of her daughter, Mildred, and contained her signature. This is a most significant circumstance when taken in connection with the other testimony given by Mrs. Wilson to the effect that she had heard from her daughter, Mildred Wilson Clinnard, in the month of August, 1944. It is our opinion that this evidence is sufficient upon which the jury could base their conclusion that she was alive on the 26th day of December, 1944, at which time he married Ina Faye Hargett.
Appellant's second contention is without merit. The statement of facts, as agreed to by appellant's attorneys and approved *Page 154 by the presiding judge, shows that appellant testified, among other things, as follows:
"At one time, I was married to a girl named Mabel but don't remember when I married her — been so long. I would not swear it was May 29, 1933. * * * I didn't get a divorce. She got it. (in Sept. 1940)."
Consequently his theory that there is a variance between the allegations in the indictment and the proof is not sustained by the record but, on the contrary, is contradicted by it. The woman named Mabel, having obtained a divorce, his subsequent marriage to Mildred Wilson was legal, and his marriage thereafter to Ina Faye Hargett without having first obtained a divorce from Mildred Wilson Clinnard constituted a bigamous marriage. The jury evidently did not believe his testimony to the effect that he thought he had obtained a divorce from Mildred Wilson before he married Ina Faye Hargett. At least, his evidence on the subject is so vague and is contradicted by circumstances as justified the jury in rejecting it.
Having reached the conclusion that the evidence is sufficient to sustain the conviction, the judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON APPELLANT'S MOTION FOR REHEARING.