Frasher v. State

Citations

• 3 Tex. Ct. App. 263

Syllabus

<p>1. Miscegenation. —Article 386 of the Penal Code (Paso. Dig., art. 2010) which makes it felony for a white person to marry a negro or a person of mixed blood, has not been abrogated or invalidated by the adoption, since its enactment, of the 14th and 15th amendments of the Federal Constitution, nor by the act of Congress known as the Civil Eights Bill.</p> <p>2. Constitutional Law—Mabriage.—Power has not been conferred upon Congress to regulate or control the institution of marriage within the several states. Marriage is not a “ privilege or immunity ” within the meaning of the 14th amendment, nor is it a “contract” within the meaning of the Civil Eights Bill; but is a civil status, the rights, obligations, and duties of which are not conventional between the parties who enter into it, but are prescribed and regulated by state legislation, over which they have no control.</p> <p>8. Same. — See the opinion in this case for an analytical exposition of the policy and scope of the 14th and 15th amendments of the Federal Constitution, and of the act of Congress known as the Civil Eights Bill.</p> <p>4. That article 386 of the Penal Code imposes a penalty upon a white person who violates its provisions, but imposes no penalty upon the negro consort of such white person, does not impair its validity, and is a matter for legislative, not judicial, consideration.</p> <p>6. Repeals by implication are not favored. Neither the emancipation of the slaves nor the consequent legislation of 1866 repealed the article of the Penal Code under consideration; nor was it affected by the provision of 1869 which legalized the marital relations of the emancipated race among themselves.</p> <p>6. Public Policy.—It has always been the policy of this state to maintain separate marital relations between the whites and the blacks.</p> <p>7. Indictment based upon the article in question need not, after alleging that the marriage was with a negro, notice the alternative clause relating to perso