58 Iowa 165 | Iowa | 1882
The defendant’s position is that the court had no power to discharge the first grand jury; that notwithstanding its supposed discharge, therefore, it was really in existence, and being so the second was illegal, because there can be but one grand jury in a county at the same time.
Upon what ground the court acted in discharging the first grand jury does not appear. If it could be done for any reason it would be our duty to assume that it was done for a good reason. But the defendant insists that a grand jury legally called, examined, charged and sworn, cannot properly be discharged for any reason.
In our opinion the date of the lawful marriage is not material. It was not the lawful marriage which constituted the offense. It was the second marriage, contracted while the defendant had a lawful wife living.
The demurrer to the indictment, it appears to us, was properly overruled.
Whether in a conflict of evidence of a fact relied upon by the defendant in such a case, we should not hold the finding conclusive we do not determine. The affidavit of the person, who was the district attorney at the time the indictment was found, and who is at present the district judge of that district, was introduced. It shows that he wrote the indictment, and that no change was made after it was returned. The well known high character of the affiant, the almost absolute certainty of his knowledge, and the improbability that his memory is in fault, gives his affidavit great weight, and we have to say that we do not think that it is overcome. Tn our opinion the motion to strike the indictment from the files was properly overruled.
Objection was made to the introduction of a copy of the record of the marriage. We need not consider this objection.
VII. One Williams was introduced as a witness by the State, who testified that he was a clergyman; and that as such he performed the marriage ceremony, whereby the defendant was married to one Sarah A: Stevens in 1872, in Webster county. The defendant moved to exclude the testimony on the ground that it was incompetent. The court overruled the motion.
The indictment, however, states that while the marriage with Sarah A. Stevens took place in Webster county, the defendant cohabited with her as her husband in Pocahontas county. Under Section 4009 of the Code the crime of bigamy is committed, not only by the unlawful second marriage, but by cohabiting with the second husband or wife in this State. The defendant then may be indicted in the county where the unlawful marriage took place, or in a county where the defendant cohabited under the marriage. State v. Sloan, above cited. Put to prove cohabitation under a bigamous marriage it is necessary to prove the marriage. The court, we think, did not err in not excluding Williams’ testimony.
IX. The defendant contends that the evidence shows that his lawful wife voluntarily separated from him, more than three years before the alleged bigamous marriage, and that the defendant did not know that she was living when the alleged bigamous marriage took place, and- that such being the fact the conviction cannot be sustained. He relies upon Cdde, § 4010. But we see no evidence of the facts upon which he relies.
We find no error and the judgment must be.
Affirmed,