State v. Locke, 151 P. 717

State v. Locke

151 P. 717 | Or. | 1915

Mr. Justice Bean

delivered the opinion of the court.

1. It is the position of counsel for defendant that Section 2073, L. O. L., which inhibits polygamy in the following language, to wit:

“If any person having a former husband or wife living shall marry another person, or live and cohabit with another person as husband or wife, such person shall be deemed guilty of polygamy. ’ ’

—was repealed by Section 2075, L. O. L. The former section directs a punishment by imprisonment in the penitentiary or county jail or by fine. The latter section provides for a punishment as a misdemeanor:

*495“If any man and woman, not being married to each other, shall lewdly or lasciviously cohabit or associate together. ’ ’

Both sections were enacted in 1864. It is argued that the latter numbered section defines the same act as is defined in the former. The fact that the offense described in Section 2075 might contain some of the elements of the crime defined in Section 2073 does not warrant the conclusion that the latter is supplanted by the former. The intent of Section 2073 is to preserve .the sanctity of the marriage relation. Polygamous relations are a crime not included in the provisions of Section 2075. To prove an infraction of the statute against polygamy would require different evidence than that required in a case of lewd or lascivious cohabitation: State v. Donahue, 75 Or. 409 (144 Pac. 755). The contention of defendant’s counsel cannot be upheld in this respect. Both statutes have stood the test since 1864. The statute prohibiting bigamy in this state has not been repealed.

2. It is next submitted on behalf of defendant that the indictment does not charge any offense in Lane County, but that, if any offense is charged, it is an offense in Portland. With this claim we cannot agree. A reading of the accusation is sufficient to inform defendant that he is charged in the usual language with the commission of a crime in Lane County. State v. Durphy, 43 Or. 79, 82 (71 Pac. 63), relied upon by defendant’s counsel, is not in point.

3, 4. Upon the trial, Mrs. Jessie Locke, the wife of defendant, was called as a witness for the state. Counsel for defendant objected to this witness testifying, except as to the fact of the marriage. The court *496sustained this objection. The witness then testified as follows:

“Q. State whether or not you are married to the defendant.

“A. Yes.

“Q. When?

“A. The 2d of November, 1897.

“Q. Where?

“A. Economy, Indiana, Wayne County.”

All other evidence of this witness was excluded. Counsel for defendant now insists that the admission of the answer to the question quoted above was error; that the same came within the objection and ruling. No additional specific objections to the question or motion to strike out the evidence was made. Section 1535, L. O. L., as amended by Laws of Oregon of 1913, page 351, provides inter alia:

“That in all criminal actions for polygamy or adultery, the husband or wife of the accused, shall be a competent witness, and shall be allowed to testify against the other, and without the consent of the other, as to the fact of marriage.”

It is the claim of defendant that the wife could only testify as to the marriage ceremony. The point is not well taken. The objection of counsel was not specific enough to direct the mind of the trial court to the objection now contended for. The evidence introduced is permitted by the statute. The question raised is only one of phraseology. If the general statement of the witness as to the fact of marriage was unsatisfactory to defendant, it should have been challenged by cross-examination or otherwise. There was no error in this respect.

5-8. The state, over objection and exception of defendant’s counsel, introduced in evidence a certified *497copy of the record of a marriage license and certificate, in Wayne County, Indiana. It is maintained by defendant’s counsel that the copy was not properly certified and that it was not connected with defendant. The documents are certified by the clerk of the Circuit Court of Wayne County, Indiana, under the seal of the court, to be correct copies of the marriage license and certificate of marriage of John A. Locke to Jessie A. McCall, on November 2, 1897, as the same appear of record. There is appended the certificate of the judge of that court to the effect that the certified copy of the marriage certificate was made and issued in due form and that the certifying officer was the clerk and the person having the legal custody of the original certificate. This is a compliance with subdivision 7 of Section 766, L. O. L., relating to proof of documents in a sister state, and rendered the evidence competent. The claim of defendant that the state should prove the statute of Indiana authorizing such record is satisfied by the statement of the judge of that state that the clerk was the legal custodian of the original. The evidence of the wife connects the defendant with the marriage on the date named in the marriage certificate. His name is identical with the name contained therein primarily leaving no room for mistake: Section 799, subd. 25, L. O. L. The presumption is generally in favor of the validity of a former marriage when there is no evidence to the contrary: 5 Cyc. 699.

9-11. The defendant introduced in evidence a copy of a decree of divorce of defendant from Jessie A. Locke, rendered by the Circuit Court for Clackamas County, May 11, 1914. This was an admission on the part of defendant that he had been married to the person named, and amply supplemented the other evidence *498of marriage. In rebuttal tbe state offered in evidence a decree of the Circuit Court for Clackamas County, dated November 21, 1914, setting aside tbe decree of divorce of May 11th, for tbe reason that tbe affidavit for publication of summons was false and fraudulent; that tbe defendant’s wife was witbin tbe state at tbe time, to affiant’s knowledge; that Mrs. Locke bad no notice or knowledge of tbe decree; and permitting her to answer. Defendant’s counsel objected to tbe latter decree, upon tbe ground that it was prejudicial, and that tbe same did not show notice of tbe application to open up tbe decree was served upon tbe plaintiff in tbe divorce case, who is tbe defendant here, and saved an exception to its introduction, and also moved to strike tbe same out. Section 103, L. O. L., confers the power upon tbe court, in its discretion, at any time witbin one year after notice thereof, to relieve a party from a judgment, order or proceeding taken against bim through bis mistake, inadvertence, surprise or excusable neglect. A proceeding under this section is a direct proceeding, and tbe presumption is in favor of tbe validity of tbe decree: Grabill v. Grabill, 22 Or. 590 (30 Pac. 320); 14 Cyc. 722; Evans v. Evans, 60 Or. 195 (118 Pac. 177). There is no lack of jurisdiction of tbe court appearing on tbe face of tbe record introduced in evidence, and nothing to tbe contrary was shown.

“Tbe judgment of a court of general jurisdiction is always presumed to have been rightly given, and its jurisdiction to have attached fully until tbe contrary is shown”: 23 Cyc. 682.

There are exceptions, as where it is shown that tbe party to be served is a nonresident of tbe state: Knapp v. Wallace, 50 Or. 348 (92 Pac. 1054, 126 Am. St. Rep. *499742). Neither of the decrees referred to notes the manner of service or the appearance of either party or attorney. The judgment-roll was not introduced by either party, and the record in this case is not in a condition to raise the question of service of process. The status of the marriage of John A. Locke and Jessie A. Locke was a matter of inquiry in the case, and when the defendant introduced the decree of May 11th the state was entitled to show the true condition of the decree, notwithstanding that the decree of November 21st incidentally showed unfairness on the part of defendant in obtaining the decree by stealth. The whole matter was connected with the marital relation of defendant and Jessie A. Locke, and evidently linked together in the mind of defendant for the purpose of terminating the offense, and formed a part of the same transaction: State v. Baker, 23 Or. 442 (32 Pac. 161); Shaffner v. Commonwealth, 72 Pa. 60 (13 Am. Rep. 649); Underhill, Criminal Evidence, §§ 87, 88.

It developed upon the trial that the defendant was a conductor on a railroad train which ran between Portland and Eugene, having a wife living in Portland at the time it is alleged he cohabited with another woman as his wife in Eugene, and while so doing he obtained a decree of divorce in another county upon publication of summons as though his wife were a nonresident of the state. We do not discuss this matter at great length, for the reason that the trial court in the charge to the jury considered the decree of divorce as not void, but voidable only, and instructed the jury that it was a complete defense for all acts of the defendant committed on or after May 11, 1914, and that they should consider only the acts of defendant committed prior to that date. This was as favorable to the defendant *500as lie had reason to ask, and practically nullified the effect of the November decree.

12, 13. At the close of the state’s case, and also after all the evidence was introduced, counsel for defendant moved for a directed verdict of acquittal, and assigns as error the refusal to grant the same. Two main points are relied upon: (1) That the state failed to prove a valid-former marriage of defendant to Jessie A. Locke; (2) that the state failed to prove that defendant had sexual intercourse with Nellie Gilmore prior to May 11, 1914. As to the former question we have alluded to a portion of the evidence. In addition to the direct evidence of the marriage given by Jessie A. Locke, and proof of the record of the license and marriage certificate, proof of subsequent cohabitation as husband and wife and the rearing of children was produced. Not only that; the defendant, by obtaining the divorce, admitted the marriage: See 5 Cyc. 700. IJpon this point there was ample evidence for the jury. There was evidence by the state tending to show that defendant and Nellie Gilmore, during March and April, 1914, in Eugene, engaged and occupied two rooms furnished for light housekeeping, with one bed; that defendant lived and cohabited there with Miss Gilmore when not on or at the other end of his run on the railroad. The circumstances tended strongly to show that they cohabited as man and wife, occupied the same bed, and had sexual intercourse. Defendant represented generally that the woman was his wife. At the end of April they engaged and occupied other similar rooms in the same manner. There was evidence from which the jury might believe beyond a reasonable doubt that defendant, while having a wife living, lived and cohabited with another woman as husband and wife, in *501violation of the statute. There was no error in denying the request for a directed verdict of acquittal.

As we find no error in the record, the judgment of the lower' court is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Benson and Mr. Justice Eakin concur.