
    HARRIS v. STATE.
    (No. 3121.)
    (Court of Criminal Appeals of Texas.
    May 6, 1914.)
    1. Bigamy (§ 9) — Evidence—Admissibility.
    Where, on a trial for bigamy, accused, H. M. H., alias J. M. H., admitted his marriage to C. in 1912, but denied his prior marriage to E., a marriage license for the marriage of J. M. H. and E. and the return of a justice of the peace of the marriage under the license were. admissible.
    [Ed. Note. — Por other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.]
    
      2. Bigamy (§ 11) — Prior Marriage — Evidence.
    On a trial for bigamy, evidence held to support a finding that accused, who admitted his marriage to one woman, was the person who had previously married another woman.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 50-53; Dec. Dig. § 11.]
    3. Criminal Daw (§ 603) — Continuance-Absence oe Witnesses.
    An application for a continuance on the ground of the absence of a witness, which fails to state what the witness will testify to, is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    4. Criminal Law (§ 1032) — Trial—Substituting Indictment — Agreement oe Counsel.
    Where the original indictment was misplaced while in the hands of accused’s attorney, who stated that he had a copy which could be used as a substitute, which was done with consent, in the presence of accused, accused could not on appeal complain because he in person made no agreement for substitution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2627, 2628, 2642; Dec. Dig. § 1032.]
    5. Bigamy (§ 8) — Evidence—Admissibility.
    On a trial for bigamy, evidence that the first wife of accused had been guilty of adultery about six months after her marriage to accused was inadmissible.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 41-49; Dec. Dig. § 8.]
    6. Criminal Law (§ 1120) — Bills oe Exceptions — Rulings on Evidence.
    A bill of exceptions complaining of the exclusion of evidence, which states the questions propounded to the witness, but not what answer the witness was expected to give, is insufficient to raise any question for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    7. Criminal Law (§ 721) — Argument oe Prosecuting Attorney — Failure oe Accused to Testiey.
    A statement by the prosecuting attorney in argument that a witness had identified accused as the one who roomed with his wife at the home of the mother of the witness, and that the witness had not been impeached nor contradicted, was not objectionable, as a direct or indirect reference to the failure of accused to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    8. Criminal Law (§ 720) — Argument of Counsel — Comment on Witnesses.
    That a witness testifying for accused had been convicted of a felony and had been pardoned by the Governor could properly be referred to in the argument of the prosecuting attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    9. Bigamy (§ 9) — Evidence—Hotel Registers — Admissibility.
    Where, on a trial for bigamy, the proprietor of a hotel identified accused as the person who stopped at her hotel, and also identified accused’s first wife as the woman who was there with accused, and testified that accused informed her that the woman was his wife, a leaf out of the register of the hotel, showing that accused had registered there with his wife, was admissible..
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.]
    10. Criminal Law (§ 444) — Evidence—Public Records.
    Where a witness testified that a marriage license offered in evidence on a trial for bigamy was the original license issued by the clerk, and that the witness was deputy clerk and knew the signature on the license to be genuine, the license under the seal of the clerk was properly received in evidence, though not filed with the papers in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. § 444.]
    11. Criminal Law (§ 938) — New Trial— Newly Discovered Evidence.
    A new trial on the ground of newly discovered evidence, based on the testimony of a witness, was properly denied, where the witness was in attendance during the trial, and was not placed on the stand after conferring with accused’s counsel.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Harry M. Harris, alias John M. Harris, was convicted of bigamy, and he appeals.
    Affirmed.
    See, also, 161 S. W. 125.
    J. E. Rose, of Palestine, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. '& Am. Dig. Key'-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of bigamy, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant ádmitted his marriage to Miss Venia Chaney on the 16th day of July, 1912, and denied that he had theretofore married Miss Alice Ellison on the 15th day of December, 1911, in San Antonio.

The marriage license issued authorizing the marriage of John M. Harris and Alice Ellison was properly proven upon this trial, and there was no error in admitting it in evidence, as was also the return of Ben I. Fisk, justice of the peace, showing that he performed the ceremony on the 15th day of December, 1911. So the really only contested issue in the case, as made by the testimony, is whether or not appellant, Harry M. Harris, is one and the same person as the John M. Harris who married Miss Ellison in December, 1911.

The party who witnessed the marriage in San Antonio was unable to identify appellant as the man; that he witnesses so many marriages in Mr. Fisk’s office he would be unable to identify any of them, unless he personally knew the parties. However, the other facts and circumstances in evidence amply support the verdict of the jury in finding that appellant was the man who married Miss Ellison on the 15th day of December, 1911, and the court therefore did not err in refusing to instruct a verdict of not guilty. Miss Politzer swears tliat appellant was in San Antonio at tliat time, and lie introduced Miss Ellison as liis wife, and they roomed at her mother’s.

As to the motion for continuance, it appears that all the witnesses named in the application attended court, except one, W. M. Powers, and by reading the application for continuance it is seen that it is not therein stated what facts were expected to be proven by this witness; in fact, it wholly fails to state that the witness would testify to anything, or it was expected he would testify to any fact. Under such circumstances, there was no error in overruling the motion for continuance.

It further appears that the prosecuting attorney had the indictment when the case was called for trial, and called his witnesses from the bach of it; that he then delivered the papers to defendant’s attorney, 'who made a list of the witnesses, and returned the papers to the prosecuting officer. It was then found that the indictment during this time had been lost or mislaid. As the indictment had been misplaced while the papers were in the hands of defendant’s attorney, he stated he had a copy of the indictment served on appellant, and that could be used as a substitute indictment. This was done at the suggestion and with the consent of appellant’s counsel while he was present. It is now contended that, while appellant’s counsel did as stated, yet appellant in person made no such agreement, and the substitution should have been made in the manner provided by the statute. While it would always be better to pursue the statutory mode of substituting an indictment, yet, when it was done by agreement, objection thereto comes too late after trial, when it is not contended that the indictment substituted is not a copy of the original indictment.

There was no error in refusing to admit testimony that the first Mrs. Harris had been guilty of illicit intercourse with other persons in August, 1911, or six months after the date of her marriage to appellant. This might furnish grounds for divorce, but in and of itself would not divorce appellant, nor authorize him to marry another woman while she was his legal wife. It would not shed any light on whether or not he had in fact married her in December, 1911.

The bills in regard to this matter are too incomplete anyway; for while they state the questions propounded, yet they do not state what answer the witnesses would have given or were expected to make.

Bill of exceptions No. 7. is not approved by the court, but the court specifically says no such testimony was admitted, and, of course, if the testimony was not admitted, the court did not err in the premises.

The bill complaining of the remarks of the district attorney is not approved by the court, but he says that the county attorney stated “that the witness Politzer had expressly identified defendant as being the man who roomed with his wife at her mother’s, and she had not been impeached nor contradicted,” and that this was all that was said by him about the matter. This is not a direct nor indirect reference to defendant’s failure to testify, and was perfectly legitimate argument.

The fact that the county attorney commented on the fact that the first witness for defendant had been convicted of the crime of murder, and was pardoned by the Governor, was legitimate argument. The fact that the witness had been convicted of a felony was admissible, as affecting his credit as a witness, and the prosecuting officer had a right to comment thereon.

The leaf out of the register at the Ferguson hotel at Mineóla, showing that appellant had registered at that hotel in March, 1912, and that he registered himself and the lady with him as “J. M. Harris and wife” was properly admitted in evidence. Mrs. Oroft, the owner of the hotel, identified appellant as the person stopping at her hotel, and the first Mrs. Harris, n6e Miss Ellison, as the woman stopping there with him at that time. She also testified that appellant had informed her that this was his wife.

As Mr. Patterson testified that the license offered in evidence was the original license issued by the clerk, that he was deputy in the county clerk’s office, and knew the signature to be genuine, and it being under the seal of the clerk, there was no error in admitting the license, although it had not been filed with the papers in the case.

That paragraph in the motion for new trial alleging newly discovered evidence presents no ground for a new trial as approved by the court. The court shows that the witness was in attendance in court, and, after being conferred with by appellant’s counsel, he was not placed on the witness stand.

Appellant has filed an application asking that we order the original license sent up to this court. A copy of it is in the statement of facts; it is- not alleged that it is not a true copy, and no useful purpose can be served in so doing. No contention is made that the original license would aid us in solving the questions.

We have carefully reviewed each ground in the motion for a new trial, and each bill of exceptions, and none of them present error ; therefore the judgment is affirmed.  