109 So. 799 | Miss. | 1926
". . . Upon their oaths present that William McQueen, in said county and state, on or about the ____ day of April, A.D. 1924, the said defendant being then and there a married man and having at the time a lawful living wife; namely Mrs. Louise McQueen, whose maiden name was Louise Blanco, he (the said defendant) did then and there willfully, unlawfully, and feloniously marry again and take for his wife one Mrs. Cornelia McQueen, whose maiden name was Cornelia Burge, and who was a woman other than and different from the said Louise McQueen, contrary to section 1051 of the Mississippi Code of 1906, and against the peace and dignity of the state of Mississippi," etc.
No demurrer was filed to the indictment, and the case proceeded to trial.
The testimony for the state showed that a ceremonial marriage was performed between McQueen and Louise Blanco, in New Orleans, La., and was witnessed by the brother of the said Louise Blanco and two young ladies; that the marriage ceremony was performed by a person at the parsonage of the Salem Evangelical Church in New Orleans, La., that this person was introduced by McQueen to the witness and others as a preacher. The said witness said that he had never seen this preacher before or since. It was further testified by said witnesses that McQueen and the woman were married in the manner *796 mentioned and lived together as man and wife, in the city of New Orleans, and were known in the community as such, and that children were born to said marriage.
Thereafter, McQueen left his wife in New Orleans, La., and came to Mississippi. The wife, subsequent to the separation, filed a suit for divorce in New Orleans, La., but could not get service upon the appellant, McQueen. Subsequently McQueen admitted to persons in Mississippi that he had a wife in New Orleans, La., and mentioned the fact that a divorce suit had been filed against him there, and stated that he would see his wife in hell before he would let her have a divorce.
Afterwards McQueen procured a young attorney in Mississippi to find out about the divorce suit in Louisiana, and this attorney learned, on his investigation, that a suit was pending but that no service upon McQueen had been had. McQueen said to other persons that he would not let his wife have a divorce and would not enter an appearance because it was an effort on the part of his wife to procure alimony. McQueen was informed by his attorney, who testified on his behalf in the case, of what he had learned in reference to the divorce suit. McQueen asked his attorney if he would be entitled, under the facts, to remarry in Mississippi, and the attorney informed him that, in his opinion, he would be entitled to marry again because he had been more than five years separated from his first wife.
The state proved a ceremonial marriage in Mississippi, in Pearl River county, with a second woman, Cornelia Burge, and that this marriage was regular in all respects, under the law of this state. The state also introduced the chancery clerk of Pearl River county where McQueen had lived during the time he had lived in Mississippi, and showed that no divorce suit was filed in said county and that no divorce had been obtained in Pearl River county, Miss. McQueen did not testify in his own behalf. There was a trial by jury and a verdict *797 of guilty, and McQueen was sentenced to the penitentiary for a term of four years, from which he prosecutes this appeal.
It is objected, first, that it was error to admit the testimony of the witness Blanco, as to the birth of children, their names and ages, and identify the children, in the presence of the jury, born to the first marriage. There is no merit in this condition. While this proof, standing alone, under the Louisiana law would not be sufficient, yet it was shown that a ceremonial marriage had taken place, and that the parties lived together as man and wife in Louisiana, under the terms of such marriage. This corroborated other evidence and was admissible as a circumstance tending to show marriage in good faith and the regularity thereof.
It is charged as error that the court erred in permitting, over the objection of the appellant, the state's attorney to call the wife of the said defendant from among the spectators in the courtroom, in the presence and hearing of the jury for the week, and in including her name among those of the witnesses for the state, she being then incompetent to testify against the appellant.
While we held on the former appeal that the witness was incompetent to testify against her husband, it is not reversible error to have her listed among the witnesses, or for her to be in the courtroom during the trial. When the witnesses were called to be sworn, the appellant objected and this objection was sustained by the court. She was not sworn as a witness; however, she sat in the courtroom by the district attorney during the trial, which was objected to, and the objection overruled and exception taken. The trial, under the Constitution, was a public trial, and the former wife had the right to be present, not having been put under the rule as a witness by either side. It may have been an impropriety for her to sit with the district attorney or appear to be interested on that side of the case; still, it is not legal error for her to sit in the courtroom, and it is not shown *798 that she did anything that could prejudice appellant's legal rights. At the conclusion of the state's testimony, defendant moved that this testimony be excluded and a verdict for the defendant directed.
It is urged that it was error for the court to overrule this because the state did not sufficiently prove the validity of the ceremonial marriage. It is argued that there is nothing to show that the minister who performed the ceremony was a duly ordained minister, or that he was a minister, in fact, and as such entitled to perform marriage ceremonies. As stated above, the proof showed that the marriage took place at the parsonage of a church, by a person in the parsonage introduced as a minister. No authority is cited from Louisiana to the effect that the state must prove the authority of a minister to perform a marriage ceremony as being essential to the validity of the marriage. Our own court has decided that the fact that he was not ordained and authorized by his church to perform the marriage ceremony, which he in fact performed, did not invalidate the marriage; and that is generally the holding of the courts of the country. In the absence of a showing to the contrary, we presume the Louisiana law is the same as that of Mississippi on this subject. Taylor
v. State,
It is next assigned as error that the indictment is void because it does not negative the exceptions contained in section 1052, Code of 1906 (section 780, Hemingway's Code). Section 779, Hemingway's Code (section 1051, Code of 1906), reads as follows:
Section 780, Hemingway's Code (section 1052, Code of 1906), reads as follows:
"Bigamy — Exceptions. The last section shall not extend to any person whose husband or wife shall have been absent for seven successive years, without being known to such person, within the time, to be living; nor to any person whose husband or wife shall have absented himself or herself from his or her husband or wife, and remained without the United States continually for seven years; nor to any person, by reason of any former marriage which shall have been dissolved by the decree of a competent court, unless the said decree provide that such person shall not be at liberty to marry again; nor to any person, by reason of any former marriage which shall have been pronounced void by the sentence or decree of a competent court, for the nullity of the marriage contract; nor to any person by reason of any former marriage, contracted by such person within the age of legal consent, and which shall have been anulled by the decree of a competent court."
Ordinarily, where a statute contains exceptions within the statute defining the offense, the indictment must negative the exceptions; but where the exceptions are contained in a separate section, or in a separate statute, the indictment need not negative the exceptions. But if we concede that the defendant's position is right, that the indictment ought to negative the exceptions, still the contention cannot prevail here, for two reasons:
First, there was no demurrer to the indictment. Section 1182, Hemingway's Code (section 1426, Code of 1906), requires that:
"All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward," etc. *800
Second, the averments of the indictment above set out are that the defendant, at the time the second marriage was entered into, was a married man having at that time a lawful living wife, naming her and giving her maiden name, and that she was a different person from the one in the second marriage necessarily negatives the exceptions of the statute. If she was divorced under the exceptions of the statute, or if the marriage was annulled under the exceptions of the statute, she would not be a lawful wife at such time. The indictment is not void on its face, whether it ought to have negatived the exceptions or not. It is sufficiently valid on its face, in the absence of demurrer, to support a trial and conviction. The judgment of the court below will therefore be affirmed.
Affirmed.
