
    SPARLIN v. STATE.
    (No. 3249.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Criminal Law (§ 595) — Trial—Continuance.
    In a prosecution for bigamy, accused claimed that he was informed and believed that his first wife was dead at the time of his second marriage, asserting that an old army companion, who could not be located at the time of the trial, wrote him to that effect. The mother of his second wife, who was temporarily without the state, made affidavit that she would testify that accused, when he asked her permission to marry her daughter, showed her such a letter, and that such letter had been lost. Reid that, where accused propounded interrogatories to the witness, so that her deposition could be taken, and the prosecutor neglected to cross them, though they were submitted six weeks before trial, it was error to deny accused a continuance to procure the testimony of the mother of his second wife.
    [Ed. Note. — For other cases, see .Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dee. Dig. § 595.]
    2. CRIMINAL Law (§ 789) — TRIAL—INSTRUCTIONS.
    In a prosecution for bigamy, where accused’s defense was that he had been informed and believed that his first wife’ was dead, he is entitled to the benefit of reasonable doubt on his defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 18S0, 1904r-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    James F. Sparlin was convicted of bigamy, and he appeals.
    Reversed, and cause dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic ami section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of bigamy. The defense he makes to the charge is that he was informed and believed that his first wife was dead at the time of the second marriage. He filed an application to continue the case on account of the absence of Mrs. V. L. Knowles, who was temporarily in California. He shows he propounded interrogatories to the witness and delivered them to the district attorney, who agreed to cross them, but neglected and failed to do so. This was some six weeks before the trial, and the district attorney had continually promised to cross the interrogatories, that the depositions might be taken. He states he expected to prove by Mrs. Knowles that he exhibited and delivered to her a letter from H. J. Alma to defendant, informing him of the death of his first wife in a hospital in Oklahoma City, at the time he asked her consent to marry her daughter, his second wife; that she (Mrs. Knowles) had lost the letter. Attached to the motion for a new trial is the affidavit of Mrs. Knowles that she would so testify, and under such circumstances we think the court erred in not granting a new trial. It was not a question for the court to determine whether or not the testimony was true under such circumstances, but the appellant had the right to have this testimony before the jury on the issue of whether or not appellant, at the time of the second marriage, believed his first wife was dead. Appellant testified to receiving this letter from Alma, and his effort to locate Alma, with whom he had served in the army. Mrs. Knowles, in her affidavit, substantiates his contention that he did receive such a letter and delivered it, and she had lost it.

Appellant also complains of the charge of the court submitting the defensive issue. We think appellant should have been given the benefit of a reasonable doubt on this issue, as contended by him, and the charge should be so framed in another trial. We have said this much in view of another trial, if the state should see proper to reindict appellant.

A motion was made to quash the indictment, and under the holding of this court in the cases of McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627, Vinsant v. State, 42 Tex. Cr. R. 413, 60 S. W. 550, and Bryan v. State, 54 Tex. Cr. R. 18, 111 S. W. 744, 16 Ann. Cas. 515, should have been sustained. In this last case Judge Ramsey exhaustively reviews the authorities, and under the motion to quash, the indictment should have been quashed.

The judgment is reversed, and the cause is dismissed.  