
    BETHANY v. STATE.
    (No. 6565.)
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1922.
    Rehearing Denied Feb. 15, 1922.)
    1. Bigamy Second marriage need not be valid; “marry.”
    The word “marry,” as used in Pen. Code 1911,, art. 481, defining bigamy, and applied to the second marriage, does not mean a valid marriage, since all bigamous marriages are void, bpt it is sufficient that defendant obtained a license to marry and had the ceremony performed by the minister.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Second Series, Marry.]
    2. Bigamy ®=^2 — Knowledge by second wife is no defense.
    It is no defense in prosecution for bigamy that the second wife knew that the first marriage was undissolved.
    On Motion for Rehearing.
    3. Bigamy <©==>! I — Evidence held to show marriage, and not merely agreement- to marry.
    In a prosecution for bigamy, evidence that defendant obtained a license to marry the second woman, and that the ceremony was regularly performed by a minister, held sufficient to show an intention to marry the second woman, and not merely an agreement, as testified to by defendant and the second woman, to marry after defendant secured a divorce from his first wife.
    Appeal from District Court, Austin County; M. C. Jeffrey, Judge.
    Horace Bethany was convicted of bigamy, and he appeals.
    Affirmed.
    Johnson, Matthaei & Thompson, of Bell-ville, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for bigamy. Punishment fixed at confinement in the penitentiary for a period of two years.

Appellant was married to Rosia M. Keener in 1916, and divorced from her on June 6, 1921. On March 14, 1921, he married Ninnie Spates. He did not cohabit with the said Ninnie Spates until after his divorce, when he was remarried to her.

It is the theory of the defense that the marriage of the 14th of March, not followed by a cohabitation, does not satisfy the law defining the offense of bigamy, wherein it is said:

“If any person who has a former wife or husband living shall marry another in this state,” etc. Penal Code, art. 481.

In support of this theory, appellant and his wife testified that the minister who performed the ceremony omitted some of the usual formula, such as declaring them husband and wife, and their intent -was not to enter into the marriage relation, but simply to bind themselves to do so when, at a subsequent date, the appellant, by the entry of the contemplated divorce decree, might be free to do so. It may be stated in this connection that the second marriage was performed by a minister at the request of the appellant. He presented a license regularly issued, which was duly returned by the minister, who declared in his testimony that the ceremony was regularly performed. This testimony supporting the verdict of the jury would be sufficient to conclude the appellant on the facts even if his defensive theory was a sound one. It is, in our opinion, however, not sound. The word “marry” used in the statute, as applied to the second marriage, does not mean a valid one. All bigamous marriages are void. Cyc. of Law & Proc. vol. 5, p. 693; Hooter v. State, 88 Tex. Cr. R. 265, 225 S. W. 1093. According to the testimony of the appellant and his witnesses, he obtained a license to marry, and the ceremony was performed by the minister. This, .according to the authorities, completed the violation of the law. Corpus Juris, vol. 7, p. 1162, subd. 15, note 75. The fact that Ninnie Spates, at the time of the second marriage, knew that the first was undissolved was of no consequence. Richardson v. State, 103 Md. 1-12, 63 Atl. 317; Burks v. State, 50 Tex. Or. R. 47, 94 S. W. 1040.

The evidence is sufficient to sustain the conviction. No error is pointed out.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant now for the first time in his motion for rehearing insists that the evidence fails to show that his former wife was living at the time he entered into what the state alleges to be the bigamous marriage. This evidently was not regarded as a very-serious contention, as we find no mention of it in his motion for new trial. However, we have examined the statement of facts, and we find the evidence ample to show that his former wife was not only living at the time the bigamous marriage was entered into, but that she was actually present in court at the time of his trial.

The other proposition urged is as equally untenable. As we understand it, his contention is that he and his last alleged wife did not intend to actually marry, but to enter into a marriage contract to be consummated when lie had secured a divorce from his first wife. This proposition is directly controverted by the testimony of the colored minister who performed the marriage ceremony between him and his last wife, who testified that no such understanding or agreement was mentioned. to him, and that he married them regularly and returned the license as required by law.

The motion for rehearing is overruled. 
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