25 Ga. App. 172 | Ga. Ct. App. | 1920
1. The evidence as to the date of the alleged bigamous marriage was conflicting, one witness testifying to a date more than four years prior to the return of the indictment, another to a date within the four-year period. The accused duly requested in writing an instruction to the jury that he should be acquitted if they believed, from the evidence, that the alleged offense occurred more than four years prior to the finding of the indictment. IE eld: Since no exception to the general rule touching the limitation of such a prosecution was alleged or proved, the refusal to give the requested instruction was error requiring the grant of a new trial. Penal Code (1910), § 30 (3).
2. “It is not essential, in an indictment for bigamy, to allege the time when, or the place at which, the prior marriage took place.” Murphy v. State, 122 Ga. 149 (1) (50 S. E. 48) ; Oliver v. State, 7 Ga. App. 895 (1) (67 S. E. 886). Where such averments are needlessly set forth, they are surplusage, and need not bo proved. The court therefore did not err in refusing the requested charge to the contrary.
3. A marriage by a female under the age of fourteen years may, notwithstanding its invalidity, be ratified by her after she has reached that age. Civil Code (1910), §§ 2931, 2935, Powers v. Powers, 138 Ga. 65 (1) (74 S. E. 759). The court did not err in refusing to instruct the jury to the contrary, or to give a requested charge which was easily capable of conveying a different meaning.
4. The evidence was conflicting, one view of it authorizing a conviction, and the other demanding an acquittal. A new trial is ordered solely because of the error pointed out.'
Judgment reversed.
