Brewer v. State, 59 Ala. 101

STONE, J. —

Thе appellant was indicted in Jefferson Circuit Court. The indictment, found by a grand jury of that county, contained a single count, and charged that, “ before the finding of this indictment, William Brewer, having a Avife thеn living, unlawfully married one Josephine Garner.” On the trial under the first indictment, testimony was introduced for the State, which shoAved that the marriage with Josephine Garner Avas solemnized in Bibb county. Thereupon, the court made, the following order: “There being a variance ■ between the allegations in the indictment and the proof, in this, that the indictment charges that the defendant having a former wife then living, married Josephine Garner; and the proof shows that the marriage with Josephine Garner was had in Bibb county, Alabama; and that defendant removed into this county with Josephine Garner, and has-continued to cohabit with said Garner in this county; and. defendant refuses to consent to an amendment of the indictment — the prosecution is dismissed before the jury retired, and another indictment is ordered to be preferred.”

The grand jury of Jefferson county thereupоn returned another indictment into court, containing tAvo counts; the first charging that “William Brewer, having а wife then living, unlawfully married one Josephine Garner — and having so unlawfully married the said Josephinе Garner, continued to cohabit with her in the said county of Jefferson and State of Alabamа.” The second count charged that said “ William Brewer, having ‍‌​‌​​​​​​​​‌‌‌‌​‌‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌​​​​​‍a former wife then living, and having unlaAvfully married one Josephine Garner, continued to cohabit Avith her in said county of Jefferson and Stаte of Alabama.” To this second indictment so found by the grand jury, the defendant pleaded the рroceedings had under the first indictment, above set out, as a former acquittal of the offence charged in the second. The plea is to both counts, and sets out the procеedings in extenso. A demurrer was-interposed to this plea, which the court sustained.

Both the original and amеnded indictments are framed under section 4185 of the Code of 1876. In neither of them is any averment of the county in which the alleged unlawful marriage ‍‌​‌​​​​​​​​‌‌‌‌​‌‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌​​​​​‍took place. Such averment is not necessary, but on the trial it must be proved that the offence was committed in the county in which the indiсtment is preferred. — Code of 1876, § 4787. Under the first indictment no conviction could have been had, fоr the marriage took place in one county, and the indictment was found in another. But seсtion 4185 of the Code, supra, declares two offences of very different constituent elements, аlthough of the same general character, and punishable in the same manner. One of the offences can be prosecuted and punished only ‍‌​‌​​​​​​​​‌‌‌‌​‌‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌​​​​​‍in the county in which the unlawful marriage is solemnized. In the other, no matter where the marriage takes place, if bigamous, the оffence is complete if the parties thus unlawfully married “ continue to cohabit ” in the county in which the indictment is found. The first indictment charges one of these offences, of which the defendant was clearly not guilty undеr the proof. The second indictment charges a different offence; and if there had been a verdict of acquittal under the first indictment, this would have been no bar to a proseсution under the second. It follows, that we need not inquire whether the Circuit Court rightly allowed this casе to be taken from the jury, and a new indictment to be preferred. Whether right or wrong, it could not hаve done the defendant any injury. — Code of 1876, § 4817; White v. The State, 49 Ala. 344; Beggs v. State, 55 Ala. 108.

The plea was to the whole indictment. The seсond count of the new indictment describes ‍‌​‌​​​​​​​​‌‌‌‌​‌‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌​​​​​‍an offence entirely different from that set forth in thе first indictment.

Each of the marriages is proved by persons who witnessed the ceremony, and thе first, by the record of the license and marriage. The second marriage, and co-habitаtion, are proved by many witnesses, some of whom prove confessions of the defendаnt. There is no charge shown in the record which raises the question of the sufficiency of the рroof. If there had been, it would not avail the defendant. — See Langtry v. The State, 30 Ala. 536; Morgan v. The State, 11 Ala. 289. All the objections and exсeptions reserved, were to the introduction of evidence; and generally to the entire evidence given severally by the witnesses. None of it was illegal, even if it were conceded that more testimony wa,s required to justify a conviction. No case can be found which holds that oral proof is not admissible ‍‌​‌​​​​​​​​‌‌‌‌​‌‌​‌‌​​‌‌‌‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌​​​​​‍on the question of marriage. Some of them go so far as to hold that confessions alone are not sufficient; but there is positive proof by eyewitnesses of each marriage in this case. There is nothing in this record which requires or permits us to consider tbe sufficiency of the evidence to support the conviction of the defendant.

There is no error in the record, and the judgment of the Circuit Court is affirmed.

Case Details

Case Name: Brewer v. State

Court Name: Supreme Court of Alabama

Date Published: Dec 15, 1877

Citation: 59 Ala. 101

Court Abbreviation: Ala.