State v. McClelland, 152 Iowa 704

State v. McClelland

152 Iowa 704 | Iowa | 1911

Sherwin, C. J.

The defendant was,married to Ruth Thompson, in Minnesota, on the 24th of November, 1906, *705and they lived together over three years, when they separated. On the 29th day of June, 1910, the defendant was married to Bosella Fingalsen, in Floyd county, Iowa. His Minnesota wife was then living, an<i they had not been divorced. Thereafter he was indicted in Floyd county for bigamy; the indictment alleging lais marriage to Bosella Fingalsen while he had a lawful wife living, to wit, Buth McClelland, to whom he was married in Minnesota. In addition to his plea of not., guilty, the defendant pleaded that he was never legally married to Buth Thompson. On the trial, the defendant proved that he was married to one Florence E. Byerly, in Kossuth county, Iowa, on the 29th day of September, 1902, and ' that Florence E. Byerly was living at the time of his marriage to Buth Thompson in. Minnesota. To meet this evidence, the state put in evidence a certified copy of the district court record of Humboldt county, Iowa, which showed that Florence E. McClelland had obtained a divorce from B. B. McClelland in that court on the 16th day of February, 1905; and the state also proved that, shortly prior to his marriage to Buth Thompson, the defendant told her that he had been married before, but that he and his wife had been divorced. This certified record from the Humboldt district court, and the defendant’s statement to Buth Thompson that he and his former wife had been divorced was all of the evidence produced by the state, showing the actual divorce of the defendant and Florence E. Byerly, his wife of 1902, and the defendant claims that it was insufficient to sustain a finding that he was divorced from 'his first wife when he married Buth Thompson in Minnesota. The defendant did not testify in his own behalf, but he produced witnesses who swore that they did not know that he had been divorced from Florence E. Byerly. The defendant is a confessed bigamist, and, while his conviction in this case should not be permitted to stand if he has been illegally convicted, the court certainly will not indulge in *706finespun theories for the purpose of reversing the judgment of the trial court.

The certified record of the district court of Humboldt county was properly admitted in evidence, and we think the names of the parties to that action, together with the defendant’s own declaration that he and his former wife had been divorced, a sufficient identification' of him as the party defendant therein. That action was brought by Florence E. against R. R. McClelland. The defendant’s name is Robert R. McClelland, and the Kossuth county wife’s maiden name was Florence E. Byerly, and in the decree the plaintiff was permitted to assume the maiden name of Florence E. Bryarly. The defendant says, however, that the name “Bryarly” used in the decree is conclusive evidence that the plaintiff was not his former wife. We do "not think so. It is so nearly the same as “Byerly” in sound and in appearance that either the judge or clerk might easily make the mistake in the spelling thereof. This is illustrated by the fact that the- very record that the defendant introduced to prove his marriage to Florence E. Byerly gives his name as R. R. McClellan, instead of Robert R. McClelland, and this record also shows that he used the initials “R. R.” in place of his full given name. The difference in spelling is so easily accounted for that we think the jury was fully justified in finding that the plaintiff in the divorce action was the defendant’s wife, Florence E. McClelland. The marriage of the defendant to Ruth Thompson in Minnesota, and to Rosella Fingalsen in Floyd county, were both fully proven. It is competent to prove marriage by those who witnessed or performed the ceremony. State v. Rocker, 130 Iowa, 239.

The judgment should be, and it is, affirmed.