Ferrell v. State ( 1903 )

Carter, P. J.

In October, 1902, plaintiff in error was convicted; in the Circuit Court of Santa Eosa county of the crime of bigamy, and from the sentence imposed upon him sued out the present writ of error.

The first error assigned is based upon the ruling denying defendant’s motion to quash the indictment. We will dispose of the several objections argued in this assignment in the order named in the brief. It is contended that the indictment fails to allege that the first marriage was valid, or that the first wife was living at the time of the second marriage. We see no basis for this contention inasmuch as the indictment distinctly alleges that at the time of the second marriage the defendant had a lawful living wife by the marriage theretofore contracted. The wife of the former marriage could not he a lawful wife if the marriage was not valid. Bishop’s Stat. Crimes, Sec. 602a; Kopke v. People, 43 Mich. 41, 4 N. W. Rep. 551; Hills v. State, 61 Neb. 589, 85 N. W. Rep. 836. It is also insisted that the time and place ot the first marriage is not alleged. In Cathron v. State 40 Fla. 468, 24 South. Rep. 496, this question was fully considered and ruled adversely to defendant’s .contention. Again, it is argued that the indictment does not allege that the second marriage was unlawful. True it is not directly alleged that the second was, unlawful, but it is alleged that the second was consummated while the defendant had a lawful living wife by the prior marriage alleged. This is sufficient to show that the second was r.nlaAvful. Bishop’s Stat. Crimes, 'Sec. 603. Finally, it is insisted that the' indictment is had because it fails to negative the exceptions found in section 2604 Revised Statutes, as amended: by Chap. 4963, acts of 1901. The indictment is founded upon section 2303 Revised Statutes. The two sections read as follows: “2303. PUNISHMENT. — Whoever, having a former husband or aaíío living', marries another person, or continues to cohabit Avith such second husband or Avife in this State, shall (except in the cases mentioned in the following section) be punished by imprisonment in (lie State prison not cx'jccding five years, or in the county jail not exceeding one year, or by fine not exceeding five hundred dollars.”

“2604. EXCEPTIONS. The provisions of the preceding section shall not extend to any person Avhose husband, or Avife has been continually remaining beyond sea, or has voluntarily deserted the other and remained absent for the space of three years continuously, the party marrying again not knowing the other to be living within that time, nor to any person divorced from the bonds of matrimony.”

The question here presented was fully considered and determined against the contention of defendant in the following well considered authorities: Commonwealth v. Jennings, 121 Mass. 47; State v. Abbey, 29 Vt. 60; Fleming v. People, 27 N. Y. 329. See, also Bishop’s Stat. Crimes, Sec. 606; Baeumel v. State, 26 Fla. 71, 7 South. Rep. 371. The authorities cited express the law correctly.

The defendant filed pleas in abatement as follows: 1st. That the said indictment was found by a grand jury that had a foreman pro tern, during the absence of the regular foreman.

2nd.That there were two foremen of the said grand jury when the -said bill was found.

3rd. That the said indictment is not endorsed as a true bill by the regular foreman of the grand jury,

4th. That the said indictment is endorsed’as a true bill by one J, D. C. Newton, who was not the foreman chosen at the time the grand jury was empannelled.

5th. Because the said indictment was endorsed as a true bill by one J. I). C. Newton, foreman, when in truth and in fact he was only- an acting foreman.

The State demurred to the 1st, 4th and 5th pleas. The demurrer was sustained and the ruling thereon is the basis for the second assignment of error. There was no prror in this ruling. The first plea was bad because, as shown hereinafter, a grand.-jury can legally have a fo n man pro tem. in the absence of the regular foreman. Besides the plea does not allege .with certainty that the case against the defendant was considered or the indict ment found or returned into court during the absence of the regular foreman. The fourth plea was bad because, as will be shown in a subsequent part of this opinion, the indictment can lawfully be endorsed by a foreman of a grand jury duly selected, other than the one chosen at the time the graiid jury were originally empannelled. and this plea does not deny that the foreman who en dorsed the indictment was duly selected. The fifth ple.i was bad because the fact that the foreman endorsed the bill as foreman, when in truth he was only an acting foreman, constitutes mere irregularity, in no manner affecting any substantial right of the defendant. If the party endorsing the bill as foreman was duly authorized to act as such, and the plea does not deny that fact, the failure to' use the word “acting” before the word “foreman” following his signature to the endorsement “a true bill” would not vitiate the indictment. White v. State, 93 Ga. 47, 19 S. E. Rep. 49; State v. Sopher, 35 La. Ann. 975; State v. Brown, 31 Vt. 602.

The State joined issue upon the second and third pleas, and upon the trial of those issues the only evidence introduced was the minutes of the court relating to the organization of the grand jury that found the indictment. From these it appears that upon the organization of the grand jury J. W. Baggett, Sr., was duly selected as foreman and that the court ordered that his name be entered of record as foreman of the grand jury for and during the term. On a subsequent day of the term the following minute entry appears: “This day came the grand jury into court and reported that their foreman J. W. Baggett, Sr., was sick and unable to attend their session. The court thereupon instructed the grand jury to retire and select a foreman to act during the absence of their foreman, J. W. Baggett, Sr. The grand jury then retired and after due deliberation returned into the court and reported that they had selected J. D. O. Newton as fore man. Therefore it was ordered by the court that the name of J. D. C. Newton be entered of record acting foreman during the absence of J. W. Baggett, Sr.” The indictment was endorsed “a true bill. J. D. C. Newton, foreman.” The jury upon this evidence found the issue in favor of the State, and the third assignment of error is based upon the ruling denying a new trial of these issues upon the ground that the verdict was contrary to the law and the evidence.

Section 2809 Revised Statutes provides that “the grand jury shall select its own foreman,” and authorizes the foreman to administer oaths to witnesses and requires .him to return to the court a list of all witnesses sworn before the grand jury during the term. Section 2891 'Revised Statutes provides that all indictments shall he “endorsed on the back by the foreman of the grand jury when so found ‘a true bill,’ and when not found 'not a ‘true, bill,’and signed by him.’’ The. statutes make no provision for the selection of a foreman in case the one first selected be siek or absent or otherwise, unable to act, but we bold that in such eases it is within the power of the court to authorize the grand jury to select one of its members to act as foreman (United States v. Belvin, 46 Fed. Rep. 381), and that an indictment found and presented by the-grand jury and endorsed “a true bill,” with the signature of the foreman so selected to such endorsement, is valid. There being no evidence to the contrary, it must be presumed that the regular foreman was absent al. ihe time the indictment was found, endorsed and presented in court. State v. Collins, 6 Baxt (Tenn.) 151.

The defendant after the verdict and judgment against him on his pleas in abatement, pleaded not guilty to the indictment and the subsequent assignments of error are based upon rulings made during the progress of the trial had upon the issues raised by that plea.

After the jury were sworn in chief the defendant requested permission to interrogate the jurors as to whether they or either of them Avere on the grand jury that found the indictment. No-excuse for the failure txpask the desired questions upon the voir dire was given except that the question had been overlooked in examining the jurors. The court denied the request and an exception was taken, Avhich is the basis for ihe fourth assignment of error. It ivas not suggested to the court that any member of the jury had in fact been a member of the grand jury, nor that there, was any reason to suppose that he had been. It. ivas tho duty of ihe defendant to put the desiro-Vquestion upon the voir dire, and as no reason was given for the failure to do so except that the question "Aras overlooker,” and it AAras not. even suggested that there was any reason to suppose that any member of the jury had in fact been a member of the grand jury, fire trial court cannot be Irdd in error in refusing -¡o permit the question Avhen tendered for the first time after the jurors were sworn in chief. Bee upon this subject Gavin v. State, 42 Fla. 553, 29 South. Rep. 405; Denmark v. State, 43 Fla.....,31 South. Rep. 269.

The fifth and sixth assignments of error are based upon the rulings admitting in evidence the original record of the marriage license issued to defendant and Minnie Jernigan, the second wife, and in refusing the motion to strike such record from the evidence. The only objections interposed to the admission 'of this evidence, or grounds for striking it, insisted upon in the briefs filed in this court, are that the record of the license was not under the seal of the county judge who Issued it, and that the original record could not legally be introduced in evidence, but only a duly certified ■copy thereof. The record of the license concludes: “•Witness my name as county judge, and the seal of the «aid court,” &e., and it purports to have the seal attached. This disposes of the first objection, and as to the •.second, it is well settled that the original record of the marriage license may be introduced in evidence, when offered, even though acertified copy would upon common law principles or by statute be admissible. 1 Bishop on Marriage, Divorce and Separation, Secs. 988, 989; 1 Ureenleaf on Evidence, Sec. 48:5.

The seventh assignment of error is based upon the ruling admitting in evidence the original marriage license Issued to defendant and Minnie Jernigan. The only objection to its introduction tendered in the court below was that the original could not lawfully he introduced in evidence, but only a certified copy thereof. This objection is untenable upon the principles stated in the preceding paragraph,. Other objections to the document •are urged in the brief, but as they were not made in 1he court below, in accordance with the practice prevailing in 1his court we do not consider them.

After the Slate had rested its case, and the defendant bad announced that he had no testimony to offer, the court over defendant’s objection that the State had «•losed its case and the defendant had offered no testimony to be rebutted, permitted the State to prove the testimony given by defendant in a divorce suit brought by him against the wife of the former marriage, and this ruling is the basis of the eighth assignment of error. In Atnhony v. State, 44 Fla......32 South. Rep. 819, it was held that after a criminal case had been closed on both sides and the argument of counsel is being ntade, it is within ilie sound discretion of the trial court to permit the State to introduce additional evidence in furtherance of justice. See, also, Davis v. State, 44 Fla...... 32 South. Rep. 822. These authorities settle the question here raised against defendant’s contention.

It appears that the testimony of defendant in the. divorce suit so introduced in evidence was in narrative form, not elicited in answer to questions, but prepared by the attorney who represented him in that suit. • The testimony so prepared was read over to the defendant by (lie master appointed to take the testimony, and the defendant thereupon swore to it. Several objections to the introduction oftliis evidence are presented in the briefs, but we confine ourselves to those interposed in tfie trial court and mentioned and argued in the briefs. Tin sc are that flic testimony was not given upon interrogatories propounded to the defendant as a witness in the presence of or by the master, bui was prepared in the form of a written narrative and read over and sworn to by the defendant before the master. The facts stated do not render the written narrative any the less a voluntary admission under oath by the defendant, and as such it was admissible as against the objections urged.

Tlie ninth assignment of error is based upon exceptions to an instruction to the jury to the effect that in order for the State to show a former marriage, it is not incumbent upon it to prove the non-éxistence of every legal impediment which might if existing affect the validity of the marriage, but that in order to establish a former marriage it is only nec.essarv for the ' State to show cohabitation between the parties to the marriage after a marriage ceremony performed pursuant to an in compliance with the legal and usual requisites and solemnities. According to the testimony of the wife by the first marriage, who was sworn as a witness on behalf of the Btate, she and the defendant were married in Wakulla county on September 12, 1880, by the Baptist minister in charge of the church there. They lived together as husband and wife for more than five years, when they separated. Two children were born of the marriage, the youngest about a month after the separation. By other testimony it. was shown that the second marriage occurred December 22, 1001, in Banta Rosa county. According to the defendant’s testimony in the divorce suit, introduced on the part of the Btate, he and the first wife were married on Beptemher 12, 1880, in Wakulla county and lived together about seven years, when she refused to live with him any longer or to-permit him to go to see her or the children.

There is no suggestion anywhere in the evidence of any impediment to the first marriage, and that marriage is proven as a fact with cohabitation thereunder for a. period of at least five years.

The defendant offered no evidence, and the case was submitted to the jury upon the State’s testimony alone. The marriage as a fact was proven, the long cohabitation following the actual marriage is evidence of consent, and the fact that children were horn to them would tend to show that the parties were of sufficient age to enter into the.marriage relation. While there might possibly have been other disabilities, such as precontract, want of mental capacity and the like, there is no suggestion in the evidence that such existed, and ive do not see, therefore, that the instruction as applied to this case could have been misleading to the jury, even though it may not be technically correct. In the absence of. any evidence tending to suggest the invalidity of the former marriage upon the ground of some legal impediment, proof of the marriage in fact followed by cohabitation and the birth of children will naturally raise a presuinivtion that no legal impediments existed. State v. Davis, 199 N. C. 780, 14 S. E. Rep. 55; Gibson v. State, 38 Miss. 313; Wilkie v. Collins, 48 Miss. 496; United states v. DeAmador, 6 New Mex. 173, 27 Pac. Rep. 488. The rule announced in the instruction would seem (o make the presumption a conclusive one. At best it can in llie nature of things be ■prima facie only (Commonwealth v. Kenny, 120 Mass. 387; Fleming v. People, 27 N. Y. 329), though'in the absence of testimony tending to prove the existence of legal impediments it would be sufficient to authorize the jury to And a valid marriage. We do not see that defendant could have been injured in any way under the facts of this case by the instruction given, and consequently And no reversible error upon this point.

The only other question presented by the assignment of errors is that the evidence is insufficient to support the verdict. The evidence in our opinion is ample to prove the defendant • guilty, and we are of opinion that the court below was right in refusing the motion for a new trial.

The judgment is affirmed.