45 Fla. 26 | Fla. | 1903
In October, 1902, plaintiff in error was convicted; in the Circuit Court of Santa Eosa county of the crime of bigamy, and from the sentence imposed upon him sued out the present writ of error.
The first error assigned is based upon the ruling denying defendant’s motion to quash the indictment. We will dispose of the several objections argued in this assignment in the order named in the brief. It is contended that the indictment fails to allege that the first marriage was valid, or that the first wife was living at the time of the second marriage. We see no basis for
“2604. EXCEPTIONS. The provisions of the preceding section shall not extend to any person Avhose husband, or Avife has been continually remaining beyond sea, or has
The question here presented was fully considered and determined against the contention of defendant in the following well considered authorities: Commonwealth v. Jennings, 121 Mass. 47; State v. Abbey, 29 Vt. 60; Fleming v. People, 27 N. Y. 329. See, also Bishop’s Stat. Crimes, Sec. 606; Baeumel v. State, 26 Fla. 71, 7 South. Rep. 371. The authorities cited express the law correctly.
The defendant filed pleas in abatement as follows: 1st. That the said indictment was found by a grand jury that had a foreman pro tern, during the absence of the regular foreman.
2nd.That there were two foremen of the said grand jury when the -said bill was found.
3rd. That the said indictment is not endorsed as a true bill by the regular foreman of the grand jury,
4th. That the said indictment is endorsed’as a true bill by one J, D. C. Newton, who was not the foreman chosen at the time the grand jury was empannelled.
5th. Because the said indictment was endorsed as a true bill by one J. I). C. Newton, foreman, when in truth and in fact he was only- an acting foreman.
The State demurred to the 1st, 4th and 5th pleas. The demurrer was sustained and the ruling thereon is the basis for the second assignment of error. There was no prror in this ruling. The first plea was bad because, as shown hereinafter, a grand.-jury can legally have a fo n
The State joined issue upon the second and third pleas, and upon the trial of those issues the only evidence introduced was the minutes of the court relating to the organization of the grand jury that found the indictment. From these it appears that upon the organization of the grand jury J. W. Baggett, Sr., was duly selected as foreman and that the court ordered that his name be entered of record as foreman of the grand jury for and during the term. On a subsequent day of the term the following minute entry appears: “This day came the grand jury into court and reported that their foreman J. W. Bag
Section 2809 Revised Statutes provides that “the grand jury shall select its own foreman,” and authorizes the foreman to administer oaths to witnesses and requires .him to return to the court a list of all witnesses sworn before the grand jury during the term. Section 2891 'Revised Statutes provides that all indictments shall he “endorsed on the back by the foreman of the grand jury when so found ‘a true bill,’ and when not found 'not a ‘true, bill,’and signed by him.’’ The. statutes make no provision for the selection of a foreman in case the one first selected be siek or absent or otherwise, unable to act, but we bold that in such eases it is within the power of the court to authorize the grand jury to select one of its members to act as foreman (United States v. Belvin, 46 Fed. Rep. 381), and that an indictment found and presented by the-grand jury and endorsed “a true bill,” with the signature of the foreman so selected to such endorsement, is valid. There being no evidence to the contrary,
The defendant after the verdict and judgment against him on his pleas in abatement, pleaded not guilty to the indictment and the subsequent assignments of error are based upon rulings made during the progress of the trial had upon the issues raised by that plea.
After the jury were sworn in chief the defendant requested permission to interrogate the jurors as to whether they or either of them Avere on the grand jury that found the indictment. No-excuse for the failure txpask the desired questions upon the voir dire was given except that the question had been overlooked in examining the jurors. The court denied the request and an exception was taken, Avhich is the basis for ihe fourth assignment of error. It ivas not suggested to the court that any member of the jury had in fact been a member of the grand jury, nor that there, was any reason to suppose that he had been. It. ivas tho duty of ihe defendant to put the desiro-Vquestion upon the voir dire, and as no reason was given for the failure to do so except that the question "Aras overlooker,” and it AAras not. even suggested that there was any reason to suppose that any member of the jury had in fact been a member of the grand jury, fire trial court cannot be Irdd in error in refusing -¡o permit the question Avhen tendered for the first time after the jurors were sworn in chief. Bee upon this subject Gavin v. State, 42 Fla. 553, 29 South. Rep. 405; Denmark v. State, 43 Fla.....,31 South. Rep. 269.
The fifth and sixth assignments of error are based upon the rulings admitting in evidence the original
The seventh assignment of error is based upon the ruling admitting in evidence the original marriage license Issued to defendant and Minnie Jernigan. The only objection to its introduction tendered in the court below was that the original could not lawfully he introduced in evidence, but only a certified copy thereof. This objection is untenable upon the principles stated in the preceding paragraph,. Other objections to the document •are urged in the brief, but as they were not made in 1he court below, in accordance with the practice prevailing in 1his court we do not consider them.
After the Slate had rested its case, and the defendant bad announced that he had no testimony to offer, the court over defendant’s objection that the State had «•losed its case and the defendant had offered no testi
It appears that the testimony of defendant in the. divorce suit so introduced in evidence was in narrative form, not elicited in answer to questions, but prepared by the attorney who represented him in that suit. • The testimony so prepared was read over to the defendant by (lie master appointed to take the testimony, and the defendant thereupon swore to it. Several objections to the introduction oftliis evidence are presented in the briefs, but we confine ourselves to those interposed in tfie trial court and mentioned and argued in the briefs. Tin sc are that flic testimony was not given upon interrogatories propounded to the defendant as a witness in the presence of or by the master, bui was prepared in the form of a written narrative and read over and sworn to by the defendant before the master. The facts stated do not render the written narrative any the less a voluntary admission under oath by the defendant, and as such it was admissible as against the objections urged.
Tlie ninth assignment of error is based upon exceptions to an instruction to the jury to the effect that in order for the State to show a former marriage, it is not incumbent upon it to prove the non-éxistence of every
There is no suggestion anywhere in the evidence of any impediment to the first marriage, and that marriage is proven as a fact with cohabitation thereunder for a. period of at least five years.
The defendant offered no evidence, and the case was submitted to the jury upon the State’s testimony alone. The marriage as a fact was proven, the long cohabitation following the actual marriage is evidence of consent, and the fact that children were horn to them would tend to show that the parties were of sufficient age to enter into the.marriage relation. While there might possibly have been other disabilities, such as precontract, want of men
The only other question presented by the assignment of errors is that the evidence is insufficient to support the verdict. The evidence in our opinion is ample to prove the defendant • guilty, and we are of opinion that the court below was right in refusing the motion for a new trial.
The judgment is affirmed.