
    BRYAN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 23, 1911.
    Rehearing Denied Oct. 11, 1911.)
    1. Juet (§ 95) — Disqualification of Ju-rob^-Service on Grand Jury.
    That a juror was also a member of the grand jury which returned the indictment, though not actually present when the bill was examined and returned, did not disqualify him as a juror, but was only a ground for challenge.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 424-430; Dec. Dig. § 95.]
    2. Criminal Law (§ 116614) — Appeal — Harmless Error.
    That a juror was also a member of -the grand jury which returned the indictment could not have injured accused, where it appeared that such juror was not present when the bill was examined and returned.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3125; Dec. Dig. § 116614.]
    3.Criminal Law (§ 1174) — New Trial-Grounds — Misconduct of Juror.
    That jurors informed their families by telephone that they were serving on the jury was not ground for a new trial, where the state showed that accused was not injured thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3170-3178; Dec. Dig. § 1174.]
    -4. Bigamy (§ 11) — Evidence — Previous Marriage.
    While, under Pen. Code 1895, art. 348, providing that proof of marriage by reputation is not sufficient in a prosecution for bigamy, general reputation' alone is not sufficient to prove the previous marriage, it may be sufficient when taken in connection with evidence of cohabitation and accused’s admissions.
    [Ed. Note. — For other cases, see Bigamy, Gent. Dig. §§ 50-53; Dec. Dig. § 11.]
    5. Criminal Daw (§ 406) — Admissions — Bigamy.
    Accused’s admission that he . is. a married man and has a living wife is admissible against him in a prosecution for bigamy.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 785, 894-927; Dec. Dig. § 406.]
    6. Witnesses (§ 78) — Competency — Evidence— Sufficiency — Previous Marriage.
    Evidence, in a prosecution for bigamy, held to show prima facie that accused was previously married to another, so as to make the evidence of his second wife admissible.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 78.]
    7. Bigamy (§ 10) — Evidence—Admissibility.
    Where the' evidence in a bigamy case showed prima facie a previous marriage 'by accused, evidence of the second woman he attempted to marry was admissible to the effect that she married accused on a certain date, together with her identification of her signature to the marriage certificate, he representing himself as an unmarried man, and that they lived together until she left him, and that accused confessed to her that he was married and had children when' he married her, and told her the maiden name of his first wife.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. §' 10.]
    8. Bigamy (§ 9) — Evidence—Marriage Dicense — Copy.
    A certified copy of a marriage license of accused’s previous marriage, together with the minister’s certificate of performing the ceremony which had been filed in the office of the county clerk, several months after the marriage, was admissible in evidence, though it was not shown' that defendant was the same person named in the marriage certificate; the latter fact merely going to the weight of the evidence.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.]
    9. Bigamy (§ 10) — Evidence—Admissions.
    The license and return showing accused’s marriage to his second wife was admissible in evidence in a bigamy case.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 10.]
    10. Criminal Daw (§ 1044) — Presentation oe Grounds oe Review — Motion.
    The admission in evidence of a statement brought out by accused on cross-examination was not reversible error on his appeal; there being no motion to exclude such statement from evidence.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2672-2675; Dec. Dig. § 1044.]
    11. Bigamy (§ 10) — Evidence—Admissibility.
    On a trial for bigamy, evidence of declarations and communications between the alleged husband and wife in conversation before a third person, showing intimacy between the parties, is admissible.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 10.]
    12. Bigamy (§ 10) — Admission oe Evidence.
    Specific acts of intimacy of one prosecuted for bigamy and his alleged wife are admissible in evidence.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. % 10.]
    13. Criminal Daw (§ 829) — Trial—Instructions — Requests.
    Special charges requested in a criminal case were properly refused, where the main charge given sufficiently submitted all of the issues.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Philip Bryan was convicted of bigamy, and he appeals.
    Affirmed.
    Rattimore, Cummings, Doyle & Bouldin and A. S. Baskett, for appellant. C. E. Dane, 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 Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

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. Cr. R. 124, 41 S. W. 627; Bryan v. State, 54 Tex. Cr. R. 18, 111 S. W. 744; Vinsant v. State, 42 Tex. Cr. R. 413, 60 S. W. 550.

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 impaneled 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 impaneled 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 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 tbe 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 ease 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. Cr. R. 455, 47 S. W. 26, 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 exception it is alleged that the jurymen talked over the telephone to some one after being impaneled 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. Cr. R. 382, 103 S. W. 873, 123 Am. St. Rep. 889, 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. Cr. R. 297, 123 S. W. 415, and Parshall v. State, 138 S. W. 759, decided at this term of court, but not yet officially 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 Tex. App. 464, 46 Am. Rep. 241; Adkisson v. State, 34 Tex. Cr. R. 297, 30 S. W. 357.

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. App. 646; Boger v. State, 19 Tex. App. 91; Bell v. State, 33 Tex. Cr. R. 163, 25 S. W. 769.

T. M. Millican testified that he knew defendant and his first wife, and they had lived on an 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; 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 at 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 Rus-sey prior to her marriage; that she knew her as Mrs. Bryan; that they had five children, and they had lived neighbor to her for 18 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 Ft. 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 Mu-sick and Cartwright, and by the fact that he lived with her and she had children which he recognized and treated as his 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 Et. 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 cannot 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 show that defendant was the identical person named in that marriage license; but this went to its weight, and not 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 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 for certiorari, we find that No. 3 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 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.

The judgment is affirmed.  