P.B. Ward, Lockett and Kimball, for appellant. — 1. The court erred in admitting in evidence the petition for a divorcefiled in Eastland County, apparently by defendant v. Rosa Lee Holder, which was objected to by defendant, because it was not shown that defendant had authorized it to be filed, or that defendant knew its contents or that defendant was the plaintiff in that suit, and this was prejudicial to defendant, because it admitted his marriage as legal to Rosa Lee Holder. This was objected to and bill saved.
2. The court erred in refusing defendant special charge to the jury as follows, to-wit: That if the jury had a reasonable doubt that W.H. Roberts was an ordained or regular licensed minister of the gospel, or that defendant had reasonable ground to believe he was not, then you will acquit defendant.
3. The court erred in charging the jury that the said marriage was solemnized by some person who, although he may not have been a regular licensed or ordained minister of the gospel, yet such person had been in the habit of solemnizing the rites of matrimony between parties, and held himself out to the world as a regular licensed or ordained minister of the gospel, and was so regarded in the community where he lived, and if from his general reputation the contracting parties believed him to be a minister of the gospel and authorized by law to solemnize the rites of matrimony and intended in good faith to be legally married by such person, then in this event the marriage in question would be valid and binding in law. This charge was error, because the jury are told that another person other than those named in the statute may perform the ceremony, and that such person may acquire such right by falsely holding himself out to the public as a minister, and also by deceiving the contracting parties. The court also charged the jury that if the rites of matrimony between defendant and Rosa Cleveland were solemnized by a regular licensed or ordained minister of the gospel, or by some one whom the contracting parties from general reputation had good cause to believe and did believe was a regular licensed or ordained minister of the gospel, the defendant would be guilty of adultery while the marriage so solemnized was subsisting he lived with and had carnal intercourse with Alice Carlock as her pretended husband. This charge assumes that the authority to perform the rites of matrimony may be legally performed by an imposter, provided the parties contracting are successfully deceived by the imposter; and if he has succeeded in fooling the public.
4. An agreement between parties to be married followed by cohabitation and living together as man and wife, and holding themselves out as such in society is not sufficient proof of marriage in bigamy or adultery. Our statute is not directory. Western Union Tel. Co. v. Boren Proctor, 6 Texas Civ. App. 303[ 6 Tex. Civ. App. 303 ]; Dumas v. State, 14 App, 472; McGrew v. State, 13 App., 340.
A valid, legal marriage is one which has been solemnized according to the mode and manner, and in accordance with the prerequisites which the law requires. Dumas v. State, 14 App., 472 and 3; Western Union Tel. Co. v. Boren Proctor, Court of Civ. App. of Texas, decided February 8, 1894.
In the case of The State v. Hodgkins, 19 Maine, 155, the court says: "The object of requiring the testimony of a person present at the marriage (the charge being adultery) is not merely to prove the performance of the ceremony; but to prove that all the circumstances attending it were such as to constitute a legal marriage. There should be something disclosed by which it may satisfactorily appear that the person performing the ceremony was legally clothed with authority for that purpose."
In State v. Brady, 13 Ired., 289, it is said that "where a marriage is said to have been performed by a minister, the extent of his authority should appear."
If the person who performed the ceremony was reputed to be and acted as a minister, this is sufficient prima facie, but may be contradicted by evidence of want of authority in the officer officiating. State v. Abbey, 29, pp. 67 Am. Dec., 10; Statev. Robbins, 12 N.C. 44 Am. Dec., 65 and 6; State v. Johnson, 12 Minn. 476 ; Dunn v. Kingdon, 1 Thamp., etc., 492; Cutherwood v. Castor, 13 Me. and W., 261; Bird v. Cam., 21 Grat., 800; Murphy v. State, 50 Ga. 150 ; State v. Kenn, 10 N. H., 347; State v. Clark, 54 Id, 446; State v. Winkley, 14 N. H., 480.
A minister cannot be a de facto officer — he is either a minister or he is not. Suppose his church revokes his authority, he no longer has any color of authority, his office is at an end and his acts are void. Suppose a Justice of the Peace, whose successor has qualified, marries a couple ten days afterward, he is not a de facto officer, then his acts are void. But if a minister of the gospel can be a de facto officer, yet this one certainly was not because his only license from the M.E. Church, South, had been renounced long before this ceremony was performed, and he says he performed it under the C.P. Church, which he says promised to issue him license, but this promise, if ever made, was not performed, although four years had elapsed between the promise and the performance of the ceremony in this case.
A person claiming to be a de facto officer should have some colorable right to the office, the mere assumption or reputation is not per se sufficient. Franco Texan Land Co. v. Laigle, 59 Tex. Rep., 344.
When there is a statute declaring that an officer cannot act or where
the law allows another officer to do the act, no other officer call be a de facto one. Cox. v. Ry. Co., 68 Tex. Rep., 230.
The conduct of this minister in his continued application for only license to so many different churches, and never perfecting them under any, shows he knew he was a fraud. Thirty years had elapsed since his first temporary license had issued, and four years after he applies to the C. P. he performs this ceremony. Mr. Dumas says the license, if it had been issued, would have been void in six months. If there was such a thing as a de facto minister, certainly there is an end to it. But he never had license from the C. P. church, and the mere promise to issue at some time license, could not even make him a de facto minister.
In adultery and bigamy, where the proof shows that the officer was only a de facto officer, a conviction cannot stand because there has been no valid, legal marriage by a legally authorized officer.
There is a different rule applied to civil and criminal cases. Bishop on Mar. and Div., 441, 442; Wharton on Crim. Ev., 19th ed., sec. 171; Brown v. State, 52 Ala. 338 ; Case v. Case, 17 Cal. 598 ; People v. Anderson, 26 Cal. 133 ; Green v. State, ( 21 Fla. 403 ) 58 Am. Rep., 671, 672.
In addition to the above authorities, these same attorneys in their motion for a rehearing, cited the following authorities on the question as to what constitutes a valid marriage: Milford v. Worster, 7 Mass. 48 ; Com. v. Munson, 127 Mass. 459 ; S.C. 34 Amer. Reps., 417; Rex v. Brampton, 10 East, 282; Ligamia v. Bexton, 11 Amer. Decs., 46; Pratt v. Pierce, 58 Amer. Dec., 759; 1 Chitty's Blk'st., § 434, p. 346; Rice v. Rice, 31 Tex. Rep., 174.
R.L. Henry, Assistant Attorney-General, for the State.