
    BUSBY v. STATE.
    (No. 6159.)
    (Court of Criminal Appeals of Texas.
    April 27, 1921.)
    1. Criminal law <&wkey;4l9, 420(3) — Testimony held improperly excluded as hearsay.
    In a prosecution for bigamy where appellant claimed and testified that at the time of the second marriage he believed that a decree of divorce had been entered dissolving the former marriage, court erred in excluding under the hearsay rule testimony of defendant’s sister that she had related to defendant that she had had a conversation with a lawyer whom defendant had employed to bring suit for divorce, and that such lawyer had told her that the divorce had been granted, being original testimony going to show the information upon which de-' fendant acted in entering in the second marriage, in view of Pen. Code 1911, arts. 46 and 47.
    2. Bigamy &wkey;> 13 — 'Whether accused used proper care in acting upon mistaken belief that divorce was granted held for jury.
    In a prosecution for bigamy, whether at the time accused entered into the bigamous marriage he was under mistaken belief that his first wife had been divorced from him and whether in acting upon the mistake of fact he used proper care held a matter for the jury. .
    3. Bigamy &wkey;>8 — Accused held entitled to introduce testimony of bigamist wife that she reported to him that divorce had been granted.
    In a prosecution for bigamy where accused claimed that at time of the second marriage he believed that a decree of divorce had been entered dissolving the former marriage, it was clearly his right to have before the jury the testimony of the bigamous wife that she had reported to him that his lawyer had told her that a divorce had been granted.
    4.Bigamy <&wkey;10 — Noncohahitation with bigamous wife immaterial in prosecution.
    In a prosecution for bigamy, the fact that accused did not live with the bigamous wife after he learned of his mistake as to a divorce from a former wife was not material.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Samuel Busby was convicted of bigamy, and he appeals.
    Reversed.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appellant was convicted of bigamy. He first married Gracie Leona Rogers, and later married Ollie Gibson.

The defense relied upon and submitted to the jury was a mistake of fact.

Appellant claimed and testified that at the time of the second marriage he believed that a decree of divorce had been' entered dissolving the former marriage. He sought, by certain proof made and by certain evidence offered and excluded, to show the ground for this belief; that his mistake of fact did not arise from a want of proper care. He had brought suit against his wife for a divorce, and there was evidence that his sister had received a letter from his first wife, the contents of which letter were made known to him and in which the statement was made that she was divorced, that she was glad to be free, and that she did not want any longer to be called by the name of Grace Busby!

Appellant offered to prove by the bigamous wife that prior to the marriage, she had related to the appellant that she had had a conversation with one Hooker, a lawyer, whom appellant had employed to bring suit for divorce, and that Hooker had told her that the divorce had' been granted. This appears to have been rejected as hearsay. As to establishing what the witness related to the appellant, it was improperly excluded under the hearsay rule. It was original testimony going to show the information upon which the appellant acted in entering ,into the second marriage.

Our statute, articles 46 and 47 of the Penal Code, makes a mistake of fact a defense when the mistake does not arise from the want of proper care.

“Whenever it is material to ascertain the condition of a party’s mind at a particular time, statements made to him which account for his attitude are not excluded because they are hearsay.” "Wharton’s Grim. Evidence, vol. 1, § 257.

" [2] It was material in the instant case to determine the state of the appellant’s mind; that is, whether at the time he entered into the bigamous marriage he w;as under the mistaken belief that his first wife had been divorced from Mm, and whether in acting upon the mistake of fact he used proper care was a matter which the jury was called upon to determine from the evidence before them. As said by Judge Willson, in Watson v. State, 13 Tex. App. 82:

“The question as to proper care, we think, depends upon the facts in each particular case. No 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.”

Tie statute declares that the mistake must not arise from a want of proper care on the part of the person committing the offense. Article 47, Penal Code. In the instant case the person committing the offense was a negro about 22 years of age. He appeared and testified before the jury. It was within their province to weigh the evidence in connection with their knowledge of the appellant, gathered from his appearance and demeanor in giving his testimony; and it was clearly his right to have before them the testimony of the bigamous wife that she had reported to him that his lawyer had told her that a divorce had been granted. The weight that the jury would have given to this testimony or the credit they would accord the witness are not for this court or the trial court to determine, In view of the other facts in the case, they might have determined the issue of mistake against him; but this evidence was clearly admissible and material upon a vital issue in the case, and its exclusion was, in our judgment, error which must result in a reversal of the judgment.

The fact that the appellant did not live with the bigamous wife after he learned of his mistake as to the divorce was not material. Burks v. State, 50 Tex. Cr. R. 47, 94 S. W. 1040.

For the error pointed out, we are constrained to order a reversal of the judgment. 
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