16 Ga. App. 240 | Ga. Ct. App. | 1915
J. B. Graeber presented his petition for habeas corpus to the judge of the city court of Leesburg, in Lee county. The petition was brought against J. M. McBride, as warden of the Lee county chain-gang, and alleged that the petitioner was illegally restrained of his liberty, the mode of restraint being by confinement and hard labor on the public roads of Lee county, and the place of his detention being also in that county. He further alleged that he was restrained under and by virtue of an illegal and void sentence, pronounced against him by the superior court of Wayne county, Georgia, at the November term, 1913, thereof, which sentence was based on his plea of guilty to a defective indictment in that court. The indictment, a copy of which is attached to the petition, charges J. B. Graeber with “the offense of bigamy, for that the said J. B. Graeber on the tenth day of June, in the year of our Lord, one thousand nine hundred and twelve, in the county aforesaid, with force and arms, having been legally married to Marie E. O’Connell, the said lawful wife being still and then alive, did marry Bettie Lou Weaver, under the name of Elizabeth Stewart, in the State of Florida, county of Duval, and after having married said Bettie Lou Weaver in said State of
At the conclusion of the hearing the judge of the city court passed an order discharging the petitioner from further detention by the warden of Lee county chain-gang, on the ground that the detention was under an illegal sentence, based upon a plea of guilty to a void indictment; and further ordered that the petitioner bo "committed to the superior court of Wayne county, Georgia, to an
1, 2. The first question for determination is the question as to the jurisdiction and power of the judge of the city court of Lees-burg to issue a writ of habeas corpus which seeks to release from custody one restrained under and by virtue of a sentence imposed upon him by a superior court of this State, for the commission of an offense cognizable only by that court, and which the city court of Leesburg would have no jurisdiction originally to try. In the case of Pitts v. Hall, 60 Ga. 390, the Supreme Court said: “The ordinary undertook to turn out the defendant by writ of habeas corpus, the superior court reversed the ordinary on certiorari, and this is the judgment sought to be corrected. The ordinary had no right to interfere with the sentence of the superior court. Code, § 4023 [Penal Code of 1910, § 1305]. The process was lawful, and it would be dangerous to let such a court, or any court, interfere with the sentence of any other court superior to itself.” This would seem to be an explicit ruling on the point involved, but it will be found, from a careful examination of the decision in that case (and it is so declared by the Supreme Court in Simmons v. Georgia Iron & Coal Co., 117 Ga. 305-317, 43 S. E. 780, 61 L. R. A. 739), that these remarks of Judge Jackson, touching the danger resulting from the interference by an inferior court with a sentence of a court of superior dignity, were purely obiter. Any doubt which may have existed on this point before that time was definitely removed by the ruling in Simmons v. Georgia Iron & Goal Co., supra, in which it is clearly and distinctly held that “The judge of
3. In England it was 'an offense against the canon law, but not against the common law, to marry a second time during the life of the first husband or wife, or to cohabit under such a marriage. By statute enacted during the reign of James I, bigamy was, however, made a felony when committed within the limits of England or Wales, and many defects therein have been cured by later enactments. “In most of the United States the nature and punishment of bigamy are defined by statutes which are variations of the later English enactments. Bigamy is now an offense in all the States of the Union, though the degree of the crime varies.” 4 Am. & Eng. Ene. L. (2d ed.) 36. Generally speaking, “to constitute the offense of bigamy, there must have been a prior valid marriage, coupled with an entering by one of the parties thereto into a second marriage while to his or her knowledge the other party to the prior marriage is alive and such marriage is still undissolved.” 5 Cyc. 689-690. In England it now appears that under the existing statutes there may be a conviction of bigamy wherever the guilty person is apprehended or held in custody, without regard to the question where the second marriage took place, though under the earlier statutes there could be no conviction except at the place of the marriage. 4 Am. & Eng. Ene. L. (2d ed.) 39. “Generally in the United States no conviction for bigamy can be had except in the jurisdiction where the bigamous marriage was solemnized;” though by express statute in some of the States the defendant may be tried and convicted where the bigamous cohabitation occurs, even though the marriage took place outside of the State where the indictment was found. State v. Sloan, 55 Iowa, 217 (7 N. W. 516); Com. v. Bradley, 2 Cush. (Mass.) 553; State v. Johnson, 12 Minn. 476 (93 Am. D. 241); State v. Palmer, 18 Yt. 570; 4 Am. & Eng. Enc. L. (2d ed.) 40. “The time when, and the place at which, the prior marriage took place are not material ingredients of the offense, because the second marriage alone is unlawful, the first having nothing criminal in it.” 5 Cyc. 693. “The place where the second marriage was performed is material. . . Where, however, the statutes so provide, the place of the second marriage is not important, and it may have been solemnized
The defendant in this case pleaded guilty, in the county of Wayne, to an indictment for bigamy, alleged to have been committed by marrying one Bettie Lou Weaver in the State of Florida and county of Duval, and, after having married the said Bettie Lou Weaver in the State of Florida) knowing that his lawful wife was still living, by cohabiting and' living- a's': man and wife with the
It is urged that since there was no demurrer to the indictment, but, on the contrary, the defendant admitted his guilt thereunder and entered his formal plea of guilty, he could not be discharged from the sentence imposed upon him. It is sufficient to say that a plea of guilty of the commission of an act which is not a crime either under the common law or by statute certainly would not authorize the restraint or detention of the person making by his plea the admission that he did the things alleged in the' indictment which were not in violation of law. Suppose the defendant had been
It appears to be well settled that the venue in such a case, in the absence of a special statute allowing a trial in the county where the defendant is apprehended (State v. Sweetsir, 53 Me. 438; State v. Griswold, 53 Mo. 181; Beg. v. Whiley, 2 Moody, 186, reversing 1 C. & K. 150, 47 E. C. L. 150; Bex v. Eraser, 1 Moody, 407; Bex v. Gordon, B. & B. 36; Collins v. People, 1 Hun (N. Y.), 610, 4 Thomp. & C. (N. Y.) 77), must be laid in the county where the second marriage was celebrated. 5 Cyc. 696. “The basic principle that jurisdiction over crimes is local and that no State can punish for a crime committed in another State applies to prosecutions for bigamy, which must be.laid in the jurisdiction where the crime, which is the second marriage, was committed.” 3 B. C. L. 797. In the case of Nelms v. State, 84 Ga. 466 (10 S. E. 1087, 20 Am. St. B. 377), it was held that “A married man whose wife is living commits bigamy by marrying another woman, whether he cohabits with her or not, and though he be arrested immediately after the performance of the marriage ceremony. Consensus non concubitus facit nuptiasIt is evident that in this jurisdiction, under our statutes defining the crime of bigamy, in which it is definitely stated that one is guilty of this crime who “shall marry another person,” etc., or shall “knowingly marry the wife,” etc. (sections 368-370), the actual ceremony or contract of marriage itself is
The trial judge did not err in ordering the discharge of the prisoner; and his judgment is Affirmed.