Bohannon v. State

Jan 19, 1922
6 Div. 973.
Reporters:
, ,
Before:
Bricken
BRICKEN, P. J.

By the indictment in this case the defendant was charged with the offense of bigamy, it alleging, among other things:

“Having a wife then living, he unlawfully married one Thelma Cook, and, having so married the said Thelma Cook, continued to cohabit with her in Jefferson county, Ala.”

The evidence is without dispute as to the fact of this defendant ‍‌​​​​​​​​‌​​‌​‌​​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​​​​‌​​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌‌‌‌​​​​​​‌​​​‌​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‍having married the said Thelma Cook in Jefferson county, Ala., as alleged, and that, after having so married, they lived together as man and wife, and he continued to cohabit with her in Jefferson county, Ala., and that he was the father of the child which had been born to them. The only remaining question, therefore (as aptly stated by the learned judge who tried this case), “a question which goes to the very foundation of this offense,” is whether or not the defendant had been married prior to the time when it is alleged that he married Thelma Cook, and if the wife of such prior marriage was then living, and still the wife of defendant.

[1,2] It was ‍‌​​​​​​​​‌​​‌​‌​​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​​​​‌​​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌‌‌‌​​​​​​‌​​​‌​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‍contended by the state that this defendant, about 17 years prior to his marriage with Thelma Cook, had married one Miss Margaret J. Friar; that this marriage occurred in the state of Mississippi; and in support of this contention offered in evidence, over the objection of the defendant, a certified copy of an application of defendant for marriage license, a certified copy of the marriage license, and a certified copy of the “certificate of marriage” of this defendant to said Miss Margaret Friar. This transcript was properly authenticated as required by law, and was therefore admissible. Hawes v. State, 88 Ala. 37, 70, 7 South. 302; Woodward v. State, 5 Ala. App. 202, 59 South. 688; Reid v. State, 168 Ala. 118, 53 South. ‍‌​​​​​​​​‌​​‌​‌​​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​​​​‌​​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌‌‌‌​​​​​​‌​​​‌​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‍254. The objection was properly overruled. There was other evidence also as to this defendant ‘and said Margaret Friar having lived together as, man and wife, and that she was living in the state of Georgia at the time of appellant’s marriage to said Thelma Cook, and that she still lives there. No contention was made nor effort to show that a divorce had ever been applied for or granted dissolving the bonds of matrimony between appellant and Margaret Friar. To the contrary, the defendant testified that “I did not think it was necessary to get a di *366 vorce from her.” He also testified that he secured the marriage license from the clerk of the court in Mississippi, and ‍‌​​​​​​​​‌​​‌​‌​​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​​​​‌​​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌‌‌‌​​​​​​‌​​​‌​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‍also that he went through some sort of a ceremony with Margaret J, Friar in Mississippi before one Brock, but that he did not know he was a Baptist minister; that he did not consider it legal, etc. A jury question was presented, and ‘there was ample evidence adduced’ upon this trial to sustain the verdict rendered.

[3,4] The charges refused to defendant were abstract, and were properly refused. Moreover the record shows that the court gave at request of the defendant a special written charge. This charge is not set out in the record, as the law requires, and the presumption must be indulged that the propositions of law contained in the refused charges were fairly and substantially covered ‍‌​​​​​​​​‌​​‌​‌​​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​​​​‌​​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌‌‌‌​​​​​​‌​​​‌​‌​‌‌​​‌‌‌​​‌​​‌‌​​‌‍by the charge given at the instance of the defendant, and for this reason also the court will not be-put in error for the refusal of the special written charges. ■

The record is free from error- also. The judgment of the circuit court must therefore be affirmed.

Affirmed.

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