McNeill v. State , 117 Ark. 8 ( 1915 )

McCulloch, C. J.

Appellant was indicted by the grand jury of Pike County for the crime of bigamy, alleged to have been committed in that county by marrying Pearl Kelley. The first marriage was contracted in the State of Missouri. There was no dispute about the marriage alleged to have been bigamous, but the sole controversy in the trial below was whether or not appellant had contracted a former marriage and was a married man at the time he entered into the marriage with Pearl Kelley. Appellant did not introduce any testimony, but saved several exceptions to that adduced by the State.

(1) The first exception relates to the introduction of a copy of the marriage record at 'Springfield, Missouri, showing the intermarriage of John McNeill and Estelle Williams. The ground of the objection was that the copy was not authenticated in accordance with the statutes of the United States on that subject. This exception is well taken, for the record was certified by the recorder of deeds, who is the custodian of marriage records in the State of Missouri, and 'by the .clerk of the county court, but not “by the presiding, justice of the court of the' county, parish or district in which such office may be kept, or of the Governor or .Secretary of State, the eharicellor or keeper of the great seal o f the 'State, Territory or country” as required by the Federal statute. Revised Statutes of .the United States, § 906. The marriage was, however, proved by other uncontradicted testimony, and if that testimony was competent the erroneous ¡admission in evidence of the certified copy was not prejudicial to appellant. There was also an objection interposed to the other testimony, and that, too, is urged as grounds for reversal. A witness testified that be examined the original record in the bands of tbe proper custodian in Missouri and compared a photograph of it which was ■also introduced in 'evidence. He testified that the photograph was an exact copy, showing the signature of appellant to the application for license. There was other testimony tending to the identification of the signature as that of .appellant. That testimony came from other witnesses who are experts in handwriting. Now, the testimony, taken together, showed that one John McNeill was married to Estelle Williams in 'Springfield, Missouri, on September 8, 1911, and that the signature of John Mc-Neill to the application -for license was that of appellant. A brother of Estelle Williams testified that on September 8,1911, he 'Saw his sister and appellant on board the train at Bolla, Missouri, bound for Springfield, whence his sister was going to attend school. The State .also proved a statement of appellant’s to an .acquaintance in Pike County to the effect that lie had “married a girl in Missouri,” and that appellant showed the witness a photograph of the girl he claimed to have married* which the witness identified at the trial as the picture of Estelle Williams. There was still other testimony in the form of letters proved to be in the handwriting of appellant which contained statements tending to show that he was married to Estelle Williams. The introduction of those letters was objected to, and their admissibility in evidence will be discussed later.

(2-3) There is no escape from the conclusion, if all this testimony be considered, that appellant was married to Estelle Williams, and that he had a lawful wife at the time he entered into the bigamous marriage with Pearl Kelley as charged in the indictment. The last marriage constituted the corpus delicti and must be proved by the record of the marriage to have been a marriage which was in all respects legal except that the.accused had another wife at the time. The first marriage may be proved by other modes. It may be established by proof of admissions of the accused, or by reputation or by any other proof tending to show a marriage. Halbrook v. State, 34 Ark. 511. There are authorities cited in appellant’s brief to the effect that the first marriage can not be proved by admissions of the accused, but the weight of authority is the other way, and our court in the Halbrook case adopted the other rule, which we think is perfectly sound for the reason that -the last .and not the first marriage, constitutes the body of the offense and the first may be established by admissions of the accused without any other proof on that point. We think that so far as concerned the first marriage, it was competent to prove the fact in the way it was done in this case, other than by introduction of a properly authenticated copy of the marriage record. There was no prejudice, then, in the erroneous admission of the insufficiently authenticated copy of the record, for, as above stated, the competent testimony on that subject was undisputed.

(4) It is insisted that the court erred in permitting a witness, one Terrell, to testify concerning the signature of .appellant without first showing himself to be an expert on handwriting. The witness disclaimed being an expert on that subject, but isaid that he was in the mercantile business, had studied penmanship, and that he was entirely familiar with appellant’s signature. We are of the opinion that this qualified him to give his opinion as to whether or not the signatures to the papers introduced in evidence were those of appellant. If it had been .a matter of comparison of handwriting which -the witness was not acquainted with, it would perhaps be correct to say that he was not sufficiently qualified as an expert to testify on that subject, ibut he only testified about the signature with which he claimed to be familiar, and we entertain no doubt that that testimony was competent to go to the jury for what it was worth.

(5-6) The next ground urged for reversal is that the court erred in permitting the State to introduce in evidence the letters said to have been written by appellant to his wife whom he married in Missouri. These letters all contained statements which the jury might have accepted as admissions (that the woman to whom they were addressed was his wife. ’ The name of the person to whom they were addressed was one of endearment used by members of her family in addressing her, and the evidence is sufficient to establish the fact that appellant wrote the letters. It is insisted, however, that the letters constituted privileged communications on account of the fact that they were written by appellant to his wife, and that for that reason they should not have been admitted in evidence. The letters were produced by the prosecuting attorney and were introduced in evidence during the examination of witness Terrell, who identified the signatures thereto as being 'those of appellant. It was shown by the testimony of a brother-in-law of appellant’s wife (Estelle Williams) that a few days before the trial he procured the letters from his sister and turned them over to the prosecuting attorney. The court refused to permit the wife to testify as a, witness in the case, but allowed the letters to be read. We tbink this question is concluded by the decision in Hammons v. State, 73 Ark. 495, where it was held that intercepted letters from the husband to the wife could be used in evidence against the former in a trial on a charge against him of rape. In that case the letters accidentally fell into the hands of the prosecution before they reached the hands of the wife. The case differs from this in that the evidence here shows that the wife, after receiving the letters, turned them over to her brother and that he delivered them to the prosecuting attorney for the purpose of being used in evidence. The authorities on this subject are fully reviewed in the Hammons ease, supra, and this court adopted the rule that it was not a violation of the privilege to admit the letters in evidence unless the wife was called to testify or forced to produce them, or that they were wrongfully taken from her custody. The only conclusion to be logically drawn from that decision is that where the letters fall into the hands of a third person, without being taken forcibly from the wife or by other sort of compulsion to obtain them from her, they are competent evidence against the husband. Moreover, we are of the opinion that the letters were competent in this case, on another ground, and that is that there was no privilege in withholding letters tending to establish the first marriage. While appellant did not testify in the case or introduce any testimony, his attitude of defense was one that he had no't entered into a marriage prior to that contracted with Pearl Kelley; therefore, it was an inconsistent position for him to occupy, and at the same time claim the- right to exclude letters written to Estelle Williams on the grounds that she was his wife. Some of the courts hold that in a bigamy case the first wife is the injured party and for that reason may testify. The cases are cited on the State’s brief. The weight of ■authority is perhaps against that view, but the difference arises in cases where facts are sought to be proved by the wife other than the fact of marriáge. We agree fully with the North 'Carolina court in the statement that “the fact of marriage is not within the reason of the rule of public policy which makes the husband or wife incompetent to prove -any transactions after marriage. In its nature marriage is intended to be not confidential but public and notorious.” State v. McDuffie, 107 N. C. 885. In other words, the cases are not confined to those where the marriage only is soug'ht to be proved, and we are of the opinion that the sound rule is that whore only the fact of marriage is involved the privilege is not violated by the introduction of letters containing admissions as to the marriage. ,

We conclude'that the trial of this case was free’from any prejudicial error and that the judgment of conviction should be affirmed.

It is so ordered.