Brand v. State

On Rehearing. Originally, there were three appellants in this case. The application for rehearing, here filed, is made for and on behalf of only two of said appellants, viz: Will Johnson, alias W.D. Johnson, and Della Brand, alias Della Johnson. We shall so consider it.

It is insisted by said appellants:

"When the appeal was first presented in the Court of Appeals, the ruling was that the Mississippi marriages were lawful, and that the defendants were entitled to their discharge from custody. On certiorari to the Supreme Court, it has now been held in the second opinion of that court that the remarriage of a divorced person within sixty days after the decree of divorce, wherever contracted, constitutes bigamy if followed by a cohabitation within the state of Alabama. Following that opinion of the Supreme Court, the Court of Appeals affirmed the judgments of conviction, on the authority thereof, without opinion.

"We are forced to conclude that the Court of Appeals overlooked the contentions made in our brief filed on the original submission in this court, and argued at great length, that the defendants were convicted on illegal and prejudicial testimony, of several different kinds; that they were convicted on an insufficient indictment, which was duly demurred to; and that they reserved an exception to the oral charge, which exception contained manifest merit.

"We now desire, in behalf of our clients, an opinion on these various questions. If it be said by the Attorney General, as we expect, that the defendants are guilty, under the recent opinion promulgated by the Supreme Court, irrespective of any ruling at the trial, then our reply is that any and every defendant is entitled to a fair trial, to be held and conducted under the rules of the law, regardless of the degree of his guilt, and without regard to public clamor."

The appellants designated above stand within their rights in making this application for rehearing.

In our first opinion this court rendered a decision wherein the reasons of this court were clearly expressed for ordering a reversal of the judgment of conviction from which the appeal was taken. At that time we were of the opinion that the matters, and points of decision dealt with, were conclusive of the case, and saw no necessity in dealing specifically with the numerous other insistences of error presented, and which were noted by this court, but not dealt with or discussed in our opinion; deeming, as we did, it was useless to do so, as is the general rule, courts will not indulge in useless things or matters.

The first, and probably the principal insistence of error relied upon to effect a reversal, is the action of the court in overruling defendants' demurrer to count 2 of the indictment. Able and earnest counsel for these two appellants elaborately and extensively argue this question and cite numerous authorities. From our viewpoint, however, there appears no necessity for an extended discussion of this question. We are of the opinion there was no error in the action of the court in overruling the demurrers for the reason said count 2 is in the exact words of the statute. The law is, that an indictment alleging elements of offense, as defined by statute, is sufficient. Alabama Digest, Vol. 12, Indictment and Information, p. 60, 110 (3).

We here quote first, the language of the statute, to wit: "Bigamy, and bigamous cohabitation; punishment of. — If any person, having a former wife or husband living, marries another, or continues to cohabit with such second husband or wife in this state, he or she shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than five years." Code 1940, Tit. 14, § 47.

We also quote, in full, the second counts of the indictments as appears in the record, to wit:

"The Grand Jury of said County further charge that before the finding of this indictment: Will Johnson alias W.D. Johnson, whose name is to the grand jury otherwise unknown, having a wife then living, unlawfully married one Della Brand or did continue to cohabit with the said Della Brand in this State.

"The Grand Jury of said County further charges that before the finding of this indictment: Della Brand alias Della Johnson whose name is to the grand jury otherwise unknown, having a husband then living, unlawfully married one Will Johnson alias W.D. Johnson whose name is to the grand jury otherwise unknown, or did continue to cohabit with the said Will Johnson alias W.D. Johnson in this State."

Relative to the insistences of error in the several rulings of the court upon the admission of evidence, we are of the opinion that if, as contended, these several rulings by the court were infected with error, such error would be harmless and unavailable to appellants for the reason, by virtue of the ruling of the Supreme Court, under the facts admitted upon the trial of this case, and about which there was no dispute or conflict the defendants were declared to be guilty as charged in the indictment. Such construction by the Supreme Court controls the opinion and judgment of this court without reference to the views of the individual members of this court. This, by virtue of the statute. Section 7318, Code 1923, Code 1940, Tit. 13, § 95.

The above holding is sustained by Supreme Court Rule 45, Code 1940, Tit. 7, Appendix, p. 1022, and also by the opinions in the cases of Turner v. State, 29 Ala. App. 13, 191 So. 392; Turner v. State, 238 Ala. 352, 191 So. 396. See citations in 7 Alabama Digest, Criminal Law, p. 339 et seq., 1186 (4).

For like reason the noted exception reserved to the court's oral charge is also unavailable to defendant, as such charge, even if infected with error, under the admitted facts in this case, supra, could not have probably injuriously affected the substantial rights of the parties.

The application for rehearing is overruled.