Thе evidence set out in the bill of exceptions fails to show the relevanсy of the record of the judgment of the Circuit Court of Jackson county, showing a сonviction of the defendant, in February, 1877, upon his own plea of guilty, of some offense, the nature of which is not made to appear. In the absence of the indictment, upon which the conviction is based, we can not know whethеr it was for the act of living in adultery with the same person implicated in the prеséntense or not, or whether it was for an offense of an entirely distinct nature. This is vеry material, in view of the existing statute, which punishes a second conviction fоr living in adultery with the same.person with a severer penalty as an aggravated offense. — Code, 1876, § 4184. The court, it is said in the record, considered the indictment аs in evidence, though it was not read, nor was it before the court at the time. This statement gives us no information as to the crime charged by it. Nor did the court havе any authority to consider anything as in evidence which was not so in fact, unless upon the admission or agreement of the parties, or their counsel. It may be that valid objections existed to the introduction of the paper in evidence, had it been produced ; and the defendant had a right to inspect it, with thе view of interposing such objections. The court erred in admitting the judgment, under the fаcts shown by the record; and for this error, the judgment in the present case must be reversed.
We need not decide whether the defendant, under the facts of this case, so far waived his right of trial by jury as to justify the judge, of the County Court in-proceeding to try the cause, under the provisions of the act of February 9,1881, regulating the triаl of misdemeanors in Jackson county. — Acts 1880-81, pp. 232, 233, § 4. Conceding that such was the case, all we decide is, that the agreement to waive the right of trial by jury must, ordinarily, be construed to apply only to the particular trial at which it is made. Suсh a waiver is a renunciation of a valuable constitutional right, and must be strictly сonstrued. It may well be supposed, that a defendant would be perfectly willing for a particular judge to try him, when he would not risk his successor; or, tliat he would be willing to be tried the first time by a judge, when he would not submit
The motion to strike the indictmеnt from the file was supported by no sufficient reason, and was properly оverruled. The signature of the solicitor of the circuit, as often held, was unneсessary to its'validity as’a lawful indictment.— Holley v. The State,
The evidence, in our оpinion, tended to show an adulterous intercourse between the partiеs during the period of time covered by the indictment, whatever our view may be as to its sufficiency or insufficiency to authorize a conviction, unaided by other facts. This being the case, it is. well settled, that proof of acts anterior tо the time covered by the indictment could be adduced, to explain or thrоw light upon other acts of a like nature within such period, or, as is sometimes sаid, for the purpose of proving an adulterous disposition in the persons imрlicated. — 2 Greeul. Ev. (14th Ed.) § 47; Alsobrooks v. The State,
We discover no other error in the admission of evidence than the one mentioned above. For this error, the judgment of conviction must be reversed, and the cause remanded.