59 Ala. 101 | Ala. | 1877
The 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 then 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 thereupon returned another indictment into court, containing tAvo counts; the first charging that “William Brewer, having a wife then living, unlawfully married one Josephine Garner — and having so unlawfully married the said Josephine Garner, continued to cohabit with her in the said county of Jefferson and State of Alabama.” 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 State of Alabama.” To this second indictment so found by the grand jury, the defendant pleaded the proceedings 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 proceedings in extenso. A demurrer was-interposed to this plea, which the court sustained.
Both the original and amended 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 indictment is preferred. — Code of
The plea was to the whole indictment. The second count of the new indictment describes an offence entirely different from that set forth in the first indictment.
Each of the marriages is proved by persons who witnessed the ceremony, and the first, by the record of the license and marriage. The second marriage, and co-habitation, are proved by many witnesses, some of whom prove confessions of the defendant. There is no charge shown in the record which raises the question of the sufficiency of the proof. 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 exceptions 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.
