116 Neb. 363 | Neb. | 1928
Plaintiff in error, hereinafter called defendant, was convicted in the district court for Sarpy county of bigamy and sentenced to the penitentiary for not less than two nor more than seven years. Alleging there was error upon the trial, he has brought the record of his conviction to this court for review.
A demurrer was filed based upon the theory that the information was defective in that it did not charge that the first wife had not been “continually and wilfully absent for a space of five years together and unheard from, next before the time of such marriage.” The overruling of the demurrer is assigned as error. The precise question here presented was before the court in Stanglein v. State, 17 Ohio St. 453, wherein it was held:
“In an indictment for bigamy, an averment that the former husband or wife had not been ‘continually and wilfully absent for the space of five years together and unheard from, next before the time of’ the last alleged marriage, is not necessary. Such fact, if it exist, is matter of defense to be proved by the accused.”
We are disposed to follow the Ohio court in its construction of the statute. Our Criminal Code and practice is largely based, on that of Ohio. We think the court did not err in overruling the demurrer.
• The negative portions of the statute form no part of the description of the offense. Carpenter v. State, 106 Neb. 742. In Sofield v. State, 61 Neb. 600, it is held: “An information need not negative the exceptions of a statute, which are not descriptive of the offense.”
It is next urged that the court erred in permitting the county attorney, after the trial had commenced, to indorse the name of H. A. Olderog on the information as a witness for the state. - It appears that subpoenas for other witnesses had been placed in the hands of H. A. Olderog as
In considering the above assignment of error, it is proper that another assignment of error be considered with it. It appears that the regular panel of jurors was quashed, and the court, being without a jury, ordered the sheriff to summon 24 good and lawful men as jurors to report forthwith. This order of the court was complied with and the jury so summoned reported for service when the present case was called for trial. It thus appears that, after the sheriff’s name was indorsed on the information as a witness, he was to testify before a jury which he had selected. It is not claimed that, at the time the sheriff selected thé jury, he or any one else expected he would be a witness in the case, and for that reason there was no occasion to object to his selection of the jury. So far as the record shows in that respect, he performed his full duty impartially.
In making out the state’s case, the county attorney called the sheriff as a witness, and, over the objection of the defendant- to his testifying as a witness, elicited from him that he had been unable to serve subpoenas on certain witnesses whose names were indorsed on the information; and the further fact that the wife of defendant had called upon him while he was in the custody of the witness in the
Other matters of defense were presented, such as the intoxication of defendant at the time of the marriage. While there was testimony indicating that some of the members of the wedding party had been drinking, it fell far short of showing that defendant did not understand the contract he was entering into. The record shows that defendant was married to Mae E. Lewman on August 3, 1920; that he lived with her almost continuously until his marriage with Emily H. Shutt July 16, 1926, in Sarpy county; that he secured no divorce from his wife Mae and was not in a position to enter legally into a contract of marriage with Emily H. Shutt.
Thé testimony is amply sufficient to support the jury in their verdict of guilty. The judgment of the district court ;ÍS .......
Affirmed.