State v. Griswold

53 Mo. 181 | Mo. | 1873

Wagner, Judge,

delivered the opinion of the court.

The defendant was indicted by the Grand Jury of Greene county for the crime of bigamy.

The indictment charges, that defendant in October, 1863, in the State of New Jersey, married one Matilda Cosgrove, and that he afterwards left her and went to Wisconsin, where in March, 1870, his wife being still alive, he married Julia Harrington, and after he had married her, they both removed to the county of Laclede, in the State of Missouri, and there cohabited together.

Upon this indictment a capias issued, and the defendant was arrested on the same for the first time in Greene county. Upon being brought into court, the defendant moved to quash .the indictment, because: *

First — The indictment did. not charge either of the marriages to have taken place in this State, nor that the defendant and Julia Harrington cohabited together in Greene county.

Second — That it was not charged, that .the defendant had been arrested, detained, or apprehended in Greene county; and

Third — That it was not charged, that any crime had been committed in Greene county, and that it did not appear that the Greene Circuit Court had any jurisdiction of the case.

The motion was by the court sustained, and the State apjjealed.

As,to the first point the Statute provides, that persons committing bigamy in another State, and afterwards removing and 'cohabiting in this State, may be punished in the same manner as if the crime were originally committed here. (W. S., 499, §3.)

But the 4th Section of Article 8, respecting crimes and punishments, says “ that an indictment for bigamy, as defined in the preceding sections, may be found, and proceedings, trial, conviction, judgment and execution theron had, in the county in which such second or subsequent marriage or the cohabitation shall have taken place, or the county in which the offender may be apprehended.”

As the indictment charged, the cohabitation was committed in Laclede county, the Circuit Court of Greene county had no jurisdiction unless it obtained it by the apprehension of the defendant.

The Statute, in speaking of the county in which the offender may be apprehended, means that he shall be apprehended, or held in custody, prior to the finding of the indictment. Our statute is copied mainly from an English statute on the subject, and similar statutes exist in other States, and the construction has been uniform, that there must be a previous apprehension before indictment, and that fact must be alleged in the indictment.

Archibald in his treatise on Criminal Pleading and Evidence' (10th Lond. Ed., p. 629), sets out the form of an indictment, in which the direct averment of apprehension or custody is made, and then adds: “ The averment of the prisoner’s apprehension is only necessary where the second marriage did not take place in the county where the defendant is indicted; but in such case it has been held to be essential. (Rex vs. Fraser, 1 Moody, 407). So it was held also by a majority of tbe judges, that where the indictment is found in a different county from that in which the offense was committed, it must allege that the prisoner was in custody, at the time of the finding of the inquisition, in the county of the finding.” (Reg. vs. Whiley, 2 Moody, 186.) See also as to the indictment, Whart. Pr., 2 Ed., p. 985, et seq; Train & Heard Pr., 439, et seq; 2 Bish. Cr. Pr., §§ 880-81-82.

The offense charged was committed in Laclede county, and the only way in which the court in Greene county could obtain jurisdiction over the person of the defendant, was by bis being apprehended and held previous to the time of finding* the indictment.

The judgment must be affirmed.

The other Judges concur.