
    HARRIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Criminad Law (§ 444) — Evidence—Records and Certified Copies — Production and Authentication.
    In a prosecution for bigamy, a license to defendant to marry the alleged former wife was not admissible unless proven to be ’ the original license issued by the- proper officer, or unless a certified copy of it was filed with the papers at least three days before- the trial and notice of such filing was given to defendant.
    [Ed. Note. — For other- cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. § 444.]
    2. Criminal Law (§ 400) — Documentary Evidence — Parol Evidence oe Contents.
    Where a marriage license offered by the state was not admissible in a prosecution- for bigamy, the state could not prove its contents by oral testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    3. Criminal Law (§ 1171) — Trial—Remaeks of Prosecuting- Attorney.
    In a prosecution for bigamy, where the court excluded letters claimed to have been written by defendant to the alleged former wife, who had delivered them to the district attorney, a statement by the district attorney to the jury that if he had been allowed to. introduce them in evidence he would have shown defendant’s guilt was prejudicial.
    [Ed. Note. — For other eases; see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    4. Criminal Law (§ 784) — Teiai>-Insteuc-tions — Circumstantial Evidence.
    In a prosecution for bigamy, where there was no positive identification of defendant as the one who had married the first alleged wife, but the state’s evidence thereon was only circumstantial, it was error to refuse a charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    6.Witnesses (§ 193*) — Competency—Wife’s Letters — Admissibility against Husband.
    In a prosecution for bigamy, where the mother of the first alleged wife can identify the handwriting of defendant and, without the connivance of such wife, saw letters to her from him, she might identify them as his, but she could not so testify as to letters which the wife had received and had sent to the district attorney, who was in possession of them.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 740, 741; Dec. Dig. § 193.]
    6. Criminal Law (§ 400) — Best and Secondary Evidence — Lost Writings.
    In such case she could not testify as to the contents of the letters unless it was further shown that they had been lost or destroyed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    7. Bigamy (§ 8) — Evidence — Birth of Child.
    In a prosecution for bigamy, the fact that a child was born to the first alleged wife was inadmissible, as it would have no tendency to show that defendant was the person who,-under another name, had married her at a certain place.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 41-49; Dec. Dig. § 8.]
    8. Witnesses (§ 268) — Cross-examination-Scope.
    In a prosecution for bigamy, where letters from defendant to the first alleged wife were not introduced, but where her mother was permitted to testify that she had received them, defendant had the right to cross-examine her as to how she knew the letters were written by him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959;. Dec. Dig. § 268.]
    9. Jury (§ 99) — Competency—Bias.
    A juror in a trial'for bigamy, who, before the trial, had said that in such case he would convict the defendant, was incompetent by reason of his fixed and expressed opinion of defendant’s guilt.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 438-443, 445-448; Dec. Dig. § 99.]
    Appeal from District Court, Cherokee County; Lee D. Guinn, Judge.
    Harry M. Harris, alias John M. Harris, was convicted of bigamy, and he appeals.
    Reversed and remanded.
    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 & Rdp’r Indexes
    
    
      
      For other cases 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 four years’ confinement in the state' penitentiary.

The testimony of A. M. Duke, a justice of the peace in Cherokee county, shows that appellant, under the name of Harry M. Harris, was married to Miss Venia Chaney at Jacksonville on the 16th day of July, 1912, and this fact is clearly established by the record and is not questioned by the testimony offered in behalf of appellant. To prove that appellant was guilty of the crime of bigamy, the state undertook to prove that appellant had married Miss Alice Ellison, under the name of John M. Harris in San Antonio, prior to his marriage to Miss Chaney in December, 1911.

Anton Adams was called, and he testified he was clerk in the justice court in San Antonio and that Mr. Fisk, was justice of the peace; that the paper shown him by state’s counsel was a marriage license issued by Frank R. Newton, county clerk of Bexar county, dated December 15, 1911, and that it authorized the marriage of John M. Harris to Alice Ellison, and that the marriage ceremony was performed by the justice of the peace, and he (Adams) signed the license as a witness to the marriage. He then testified: “I don’t know this defendant, and if he is the man down there with these license will say that I don’t remember the gentleman. I don’t remember of ever knowing this gentleman. I don’t know whether he is the man to whom those license was issued. I don’t know whether he was in San Antonio that day or not.”

No other testimony was offered to prove that appellant was the man to whom the marriage license was issued and the person who was married to Miss Ellison by Justice Fisk on that day other than some remote circumstances. The court in approving the bill, states that the marriage license was not permitted to be introduced in evidence, but this statement, we think, only aggravates the error here complained of. Certainly if the marriage license was not proven up in a way to render it admissible in evidence, then a-witness would not be permitted to take it and state that it was a marriage license and read or state its contents to the jury, as Mr. Adams was permitted to do in this case. If he had sworn that he knew the signature of the county clerk, who issued the license, and that the signature of the clerk to the license was the genuine signature of the clerk, and that it was the original license issued, a different question would be presented, for then the license would have been admissible in evidence. But there is no evidence that the signature of Frank R. Newton, county clerk, was the genuine signature of Mr. Newton, nor that this was the original license. Mr. Adams was not questioned in regard to these matters, and he positively refuses to identify appellant as the man he saw in possession of the license. County Clerk Newton was not called as a witness.

If the issuance and execution of the license had been proven up properly, then the license would have been admissible in evidence, without filing with the papers or giving any notice; but, if the state expected to use this license and the return thereon to show a legal marriage to Miss Ellison, it ought either have proven it was the original license issued, and its issuance by the proper officer, or, if it could not do that, then a certified copy of the license ought to have been filed with the papers at least three days before the trial and notice given to appellant of its filing.

One of the other of the two things should have been done to render the license admissible in evidence; and neither of these having been done, the state could not prove its contents by a witness sitting before a jury and testifying as to its contents. If the license was not admissible in evidence, then oral proof .of its contents was not admissible. Burton v. State, 51 Tex. Cr. R. 196, 101 S. W. 226, and cases there cited.

Another matter that presents material error is that, while Mrs. Ellen Ellison, the stepmother of Miss Alice, was testifying, she identified two letters as letters written by appellant to his alleged wife, Miss Alice. ' The court excluded them on the ground that they were written by appellant to the person whom the state contended was his bona fide wife, and the establishing of which fact it was necessary for the state to do to secure a conviction, and letters written by a man to his wife are not admissible. The record further discloses that the alleged wife had delivered these letters to the district attorney. After the court had properly excluded these letters, the district attorney in' his address to the jury said: “We offered two letters from Mr. Harris to his wife, Alice Ellison, in evidence, but the court sustained defendant’s objection to their admission, and if we had been allowed to introduce these letters in evidence we would have shown his guilt.” We do not understand upon what rule of law the district attorney thought he had the right to comment on evidence excluded by the court and especially to tell them that such evidence excluded showed appellant’s guilt. This was prejudicial error of the highest character, and such error, if the court had instructed the jury not to consider it (which he did not do), would still present error. Other remarks of the district attorney are complained of, but this ruling is enough to show that he must keep himself within the record. It is further shown by the record that a portion of the jury, at least, after their retirement, discussed the fact that appellant had objected to the introduction of these letters and commented thereon. Jurymen, nor any one else during1 the trial, have any right to consider any evidence excluded by the court nor discuss such excluded evidence. It may be that appellant is guilty of the crime charged, but he has a right to a fair trial upon what the law recognizes as legitimate testimony.

The state relied on the fact that Mrs. Ellison testified that she received information which caused her and Miss Alice to go to Mineóla where appellant met them; that appellant told her he had business calling him to San Antonio, and if she .would allow Miss Alice to go with him that he would telegraph ahead and have license issued at Palestine and have an officer meet them at Palestine and marry them; that under such promise Miss Alice did get on the train with appellant. The state further proved that subsequent to this appellant and Miss Alice registered at the hotel of Mrs. Ford at Mineóla as husband and wife, remaining there several days, conducting themselves as husband and wife, and some other circumstances tending to show that appellant and Miss Alice conducted themselves as husband and wife, and that he treated her as such and so recognized her. These circumstances, together with the testimony of Anton Adams, hereinbefore discussed, was the testimony relied on to show a marriage between appellant and Alice Ellison. When we take into consideration that appellant at the time of his arrest was going under the name of Harry M. Harris, and had married Miss Chaney under that name, and the state relied on the above testimony to show that he was the John M. Harris who married Alice Ellison at San Antonio, and the further fact that Adams could not and would not identify appellant as the person who married Alice Ellison under the name of John M. Harris, it is manifest that the state relied on circumstances to show that the John M. Harris who, in San Antonio, married Alice Ellison was one and the same person as Harry M. Harris who married Miss Chaney. No positive testimony of that fact was offered or introduced in evidence. The circumstances are doubtless strong and cogent, tending to show that fact,; but there is no positive testimony in the record that, appellant, Harry M. Harris, was ever in San Antonio in his life, and no positive testimony that if in San Antonio he was going under, the name of John M. Harris, and under such circumstances the court erred in refusing to give the special charge requested by appellant on circumstantial evidence. There are a number of complaints and exceptions to the testimony of Mrs. Ellen Ellison, and we will treat all of them together.

If Mrs. Ellison is able, on. another trial, to identify the handwriting of appellant, and she saw letters from appellant to his alleged wife, Alice Harris, if she saw them without the connivance of his wife, she should be permitted to so testify. Letters stand in the same category as third persons overhearing conversations .between the husband and wife. The husband nor wife could not testify as to the conversation, but the third person who heard would be permitted to do so. And so if she got possession of the letters without the knowledge, connivance, or acquiescence of either the husband or wife, and she knows the handwriting and can so state, then she could so testify, but as to the contents of the letters she would not be permitted to testify, unless it was further shown that such letters had been lost or destroyed. But under no circumstances should she be permitted to testify that the wife had received letters which the wife had sent to the district attorney, and that that officer was in possession of such letters. What became of the letters would be immaterial unless they were lost or destroyed. Nor, if Mrs. Ellison obtained the letters from her daughter, with the knowledge and consent of the daughter, to enable her to testify in regard to them, should she be permitted to testify in regard to the letters.

Nor can we see how the fact that á baby was born to Mrs. Harris, née Ellison, would be admissible. Such fact would have no tendency to show that appellant was the John M. Harris who married Miss 'Ellison in San Antonio.

The court was in. error again in refusing to permit appellant’s counsel to inter* rogate the witness as to whether or not she knew that the letters were in the handwriting of appellant. It is true that the letters themselves were not introduced in evidence, but the witness was permitted to testify that her daughter had received letters from appellant, and it was permissible to cross-examine her as to how she knew the letters were written by appellant. Neither should she have been permitted to testify: “She sent some of those letters down here to the county attorney and brought, some of them here with her this time. I don’t- know how many she sent down here, only what she told me.” And this error was further aggravated, as hereinbefore shown, by the district attorney offering these letters in evidence and, when the court excluded them, have him tell the, jury that if he had been permitted to introduce those letters they would have shown appellant’s guilt. .

W. P. Brittain was one of the jurymen who tried appellant. On the hearing of the motion for a new trial, W. O. Neely testified : “I remember some tíme during this court, and about the 2d of June, of this case against Harry M. Harris being tried wherein he was charged with bigamy. I remember hearing Mr. Brittain before the trial of that case making some remarks about the case. We were right over here at Mr. Tucker’s store here in town) and Mr. Tucker just made the • remarks that if he was on the jury where a man did like that he would stick him; and Mr. Brittain just said, ‘Yes, I would convict him, too, if I was on that jury myself.’ ” Mr. Tucker testified in substance to the same facts. Mr. Brittain was also called as a witness and testified that he was at Tucker’s store, but stated “he had no recollection of what he did say at that time.” He would not positively deny making the remark. He was not a competent juror, having a fixed and expressed opinion as to appellant’s guilt. Many other matters are complained of in the record,, and some of which present error, but the rulings herein made apply to the rulés of law to such matters in a way they will not occur on another trial, and we deem it unnecessary to reiterate the law in regard to such matters.

Reversed and remanded.  