Finney v. StateFinney v. State
- Reporters:
- Before:
- Caruthers
delivered the opinion of the Court.
Thе indictment and conviction were for bigamy, or cohаbitation after that offence, under the Code, sec. 4889.
“ If any person being married shall marry another persоn, the former husband or wife then living, or continue to cohabit with such second husband or wife in this State, such person shall be imprisoned in the penitentiary not less than two, nor more than twenty-one years.”
Neithеr the first nor second marriage was in the county of Wayne, where the accused was indicted and tried. The first count is for bigamy, and the second for cohabiting in Wayne, after the ■ offence of bigamy had been committed in another county.
The first question is upon the venue. By the Constitution, the accused has a right to be indicted in the county wherе the offence was committed; and we held at this term, thаt this right cannot be infringed, even by the Legislature. However, *546this question may have been decided before the Codе, or by the common law, it is now, under the Code, only a mattеr of construction. We think it clear, that by this section, “to continue to cohabit with such second husband or wife, in this State,” is a distinct and complete offence, and as much cognizable in the county where it’ occurs, as the сrime of bigamy is in the county where the second marriage took place. The offender could not be charged for the latter crime in any other county than thаt where it occurred; but, as to the former, it may be in a different county, and must be located by the facts, as well as the other. They are two distinct offences. To make out the case for unlawful cohabitation, the offеnce of bigamy must be proved by establishing, both the marriagеs, and that at the time of the second, the former had not been dissolved by divorce, or death, either actual or presumed. This new offence was created to prevent the scandal and evil examples of permitting men and w’omen to cohabit in any community of this State, upon an unlawful second marriage, when the first, as well as the last, or either, may have taken place in any other Otate or county. But let the reason be what it may, the creation of the new offence is dear and explicit, and the law must he enforced.
Second. It is insisted that illegal evidence was admitted on the trial. We think diffеrently. 1. The so called second wife was allowed to be introduced to prove the cohabitation in Wayne. She was competent by all the authorities, aftеr the first marriage; and also that the first wife was still alive, was рroved. 2. Again, the declarations and confessions оf the defendant, as to the first and second marriages wеre allowed to be proved, without the productiоn of the license, or accounting for their non-production, or the introduction of any eye witness, of either marriage. This is also settled by the Code, sec. 4841, without reference to other authority, in favor of the ruling of the Court.
There is no error in the case, and the judgment must be affirmed.