134 Ky. 613 | Ky. Ct. App. | 1909
Opinion of the court by
Affirming.
“The grand jury of Harlan county, in the name and by the authority of the Commonwealth of Kentucky, accuses Lloyd Cornett of the crime of bigamy, committed in manner and form as follows, viz: The said Lloyd Cornett on the 26th day of October, 1909, before the finding of this indictment and in the county and state aforesaid, having a wife then living by the name of Sarah Cornett, whose name before she married him was Sarah Lewis, to whom the said Lloyd Cornett was lawfully married on the 5th day of June, 1903, in the county of Harlan, State of Kentucky, did unlawfully marry Frankie A. Creech, against the peace and dignity of the Commonwealth of Kentucky.”
Appellant filed a demurrer to this indictment, which was overruled. He then entered a plea of not guilty and upon a trial before a jury he was convicted and sentenced to three years ’ confinement in the penitentiary. Appellant asks a reversal for the following reasons: First, the court erred in overruling his demurrer to the indictment. Second, the evidence shorts his second marriage was consummated under the belief on his part that his first wife was dead. Third, the court failed to instruct the jury as to the whole law of the case. Fourth, the court erred in instructing the jury as to what weight should be given certain evidence introduced. We will consider these propositions in the order stated. •
It appears from the indictment, as copied, that it was alleged that appellant committed the offense of bigamy on the “26th day of October, 1909,” by marrying Frankie A. Creech, Avhen he at that time had a wife living to whom he was married on the 5th day
“Evidently the figures ‘1891’ were by mistake nsed instead of ‘1881’ to designate the date of the first alleged marriage, for it is not probable both occurred in September, 1891, or that it was intended to be so stated in the indictment. But section 129, Cr. Code Prac., provides that the statement in the indictment as to the time an offense was committed is not material further than as a statement it was committed before the time of the finding of the indictment, unless the time be a material ingredient in the offense.”
The time of the commission of the offense was not material in this case. All that was necessary for the Commonwealth to allege and prove was that.the offense was committed before the finding of the in
“In the crime of bigamy the felonious intent is not an elopjent in the crime; a person might be guilty cf bigamy who in good faith believed that he or she luid been lawfully divorced.” The section of the statute above referred to is as follows:
“Whoever, being married, the first husband or wife, as the case may be, being alive, shall marry any persor, shall be confined in the penitentiary not less than three nor more than nine years. * * *” Under the statute the only question to be considered was: Did appellant have a wife living, from whom he had not been divorced, at the time he married his second wife, Frankie A. Creech? And this was shown without contradiction. Under the statute and the decisions construing it appellant should have sought ex-executive clemency instead of prosecuting this appeal. The lower court permitted appellant to introduce proof showing his good faith in believing that ids first wife was dead when he married the second time, but admonished the jury in effect not to consider it as a defense to the prosecution, but only in mitigation of the punishment to be inflicted upon him if they should find him guilty. This was proper, and is the matter complained of in the fourth ground for reversal.
For these reasons the judgment of the lower court is affirmed.