
    Ex parte LAMBERT.
    (No. 3386.)
    (Court of Criminal Appeals of Texas.
    Jan. 6, 1915.)
    1. Criminal. Law (§§ 419, 420) — Evidence — Admissibility.
    A letter written by one claiming to be a wife of accused is not admissible to show that he was guilty of the offense of bigamy.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    2. Habeas Corpus (§ 85) — Discharge—Evidence.
    Under Code Cr. Proc. 1911, art. 206, providing that where upon examination under ha-beas corpus it shall appear that there is a probable cause to believe that an offense has been committed by the prisoner he shall not be discharged, the court may, on habeas corpus, consider evidence which would not be admissible at trial, where the deficiencies in the evidence could be cured and ' competent evidence of the same facts secured.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. § 85.]
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Application by S. E. Lambert for writ of habeas corpus. From judgment denying the writ, relator appeals.
    Affirmed.
    J. A. Dial, of Sulphur Springs, 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
    
   PRENDERGAST, P. J.

By complaint before a justice of the peace appellant was charged with bigamy. Upon an examining trial the justice bound him over on a $750 bond to appear before the grand jury next to convene. He sued out a writ of habeas corpus before tbe district judge, wbo, after bearing tbe evidence, likewise bound bim to appear before said grand jury, fixing bis bond at $500. He failed or refused to make bond and was committed to jail.

On tbis babeas corpus bearing tbe state, over his objections, introduced a certified copy of a marriage license and return thereon from the probate court of Lauder-dale county, Ala., authorizing bim to marry Ester Viola O.asttell and bis marriage to her in December, 1007. Tbis copy was certified to by the judge of probate of said court and county. It was not authenticated as required under the act of Congress, so as to properly be introduced in evidence, over that objection, on final trial. However, there is nothing to indicate but that it is a fact that such license was issued and Lambert was married to said woman, and that tbe properly authenticated copy can be procured in ample time for the action of the grand jury and final trial. Tbe state also introduced a properly certified copy of a license from Hopkins county, Tex., authorizing bim to marry, and the return thereon shows his marriage to, Mrs. Nannie Bruce in November, 1913. The sheriff of said Hopkins county, who made the complaint herein, testified, in substance, that he made said complaint on information which came to him from said two women, the first one now living in Ethridge, Tenn,, the' latter in Stamps, Ark., and he identified, and the state introduced, over appellant’s objection, what purported to be a recent letter from the former. This letter, even if properly proven up over his objections, could in no event be introduced on final trial. As we understood appellant’s attorney in oral argument, in submitting this case, he, in effect, conceded that the evidence heard by the district judge indicated appellant may be guilty of the offense charged, or, rather, that legal evidence may in time be gotten by the state sufficient to probably show his guilt, yet, as the evidence which the district judge did hear was legally inadmissible, he should have discharged him and not bound him over.

We are of the opinion, both from the statute and decision of this court, that the action of the district judge was in all things correct. The statute says:

“Where, upon .an examination under habeas corpus, it shall appear to the court or judge that there is probable cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or admitted to bail, according to the facts and circumstances of the case. Art. 206, C. O. P.

This court, in Ex parte Walck, 25 Tex. App. 171, 7 S. W. 666, after quoting the above article, said:

“Under the facts as they appear in this record,- we are of opinion that there was no error in requiring a bond of applicant; it appearing to us that there was probable cause to believe that an offense had been committed by the applicant. But it is not to be inferred from this that there is evidence sufficient to sustain a conviction or warrant an indictment. We believe, under the facts of the case, that it was proper to require the bond, so as to secure the presence of the applicant, if, upon a more thorough investigation, sufficient evidence should be discovered upon which to present an indictment.”

The judgment is affirmed.  