## Facts

- Samuel Busby married Gracie Leona Rogers and, while that marriage allegedly still existed, later married Ollie Gibson.
- The State prosecuted Busby for bigamy based on the second marriage.
- Busby asserted a mistake-of-fact defense, claiming he believed his first marriage had been dissolved by divorce when he remarried.
- Busby had filed a divorce action against Rogers and received information suggesting Rogers was divorced, including a letter received by his sister.
- Busby offered Gibson’s testimony that Busby’s divorce attorney told her a divorce decree had been granted, offered to explain why Busby believed he was free to remarry.
- The trial court excluded Gibson’s testimony as hearsay.
- A jury convicted Busby of bigamy and assessed a two-year penitentiary sentence.
- The record indicated that once Busby learned the first marriage had not been dissolved, he did not continue living with Gibson.

## Issues

1. Whether the trial court erred by excluding the second wife’s testimony about the lawyer’s statement, when offered to show its effect on Busby’s belief and support a mistake-of-fact defense rather than to prove a divorce was actually granted.
2. Whether excluding that evidence improperly limited Busby’s ability to present circumstances bearing on good faith and “proper care” in forming the mistaken belief.

## Decision

- The Texas Court of Criminal Appeals reversed the conviction and remanded for a new trial.
- The court held the excluded testimony was admissible because it was offered to show information communicated to Busby and its effect on his state of mind, not for the truth of the asserted divorce.
- The exclusion was harmful because the evidence was material to Busby’s mistake-of-fact defense.

## Legal Principles

- An out-of-court statement is not barred as hearsay when offered to show its effect on the listener’s mind (notice, belief, or good faith) rather than to prove the truth of the statement.
- In a bigamy prosecution, a defendant may rely on mistake of fact by showing an honest belief that the prior marriage was dissolved, so long as the mistake did not result from a lack of “proper care.”
- When mistake of fact is raised, the jury should hear relevant circumstances that tend to show the basis, reasonableness, and good faith of the defendant’s belief.

## Conclusion

The court ordered a new trial because testimony that the defendant received information from counsel indicating a divorce had been granted was admissible to show the defendant’s belief and diligence, and excluding it improperly undermined the mistake-of-fact defense.


Busby v. State, 89 Tex. Crim. 213, 230 S.W. 419 (Tex. Crim. App. 1921)