State v. Shreve

137 Mo. 1 | Mo. | 1897

Gantt, P. J.

The defendant was indicted and convicted of bigamy in the circuit court of Clinton county at the May term, 1896.

The charge in the indictment is that on July 4,. 1893, he was married to Bell Bailey, at Leavenworth, Kansas, by the judge of the probate court, and thereafter did abide and cohabit with said Bell Bailey from the fifth day of July, 1893, up to the finding of the indictment in said Clinton county, Missouri, and that, prior to said marriage to said Bell he had intermarried with Lizzie Shreve, and said Lizzie Shreve- at the time of his marriage to said Bell Bailey was still living and was then his lawful wife.

The evidence established beyond all cavil that on the twenty-third day of June, 1881, the defendant was married to Miss Lizzie Deneau, in the Catholic church at Cameron, Missouri, by Rev. Father Denny, a Catholic priest; that defendant continued to live with Miss Deneau as his wife until the year 1886, but in that year he commenced an action against her for divorce which he subsequently voluntarily dismissed. It was also shown hy a duly certified copy of the record of the probate court of Kansas that on July 4, 1893, defendant was again married to Myrtle Bell Bailey at Leavenworth, Kansas, by Lawrence Hann, probate judge, who was duly authorized to solemnize marriages by the laws of said state. This fact was also corroborated and established by the admissions of defendant. It was clearly .proven that defendant and said Myrtle Bell Bailey lived and cohabited together as man and wife for several years afterward in Clinton county. It was shown that Myrtle Bell Bailey and Bell Bailey were one and the same person.

To reverse the judgment of the circuit court sentencing him to the penitentiary defendant assigns various alleged errors which will be noted.

I. The motion to quash was properly denied. Bell Bailey, the last wife, was clearly competent to testify. The exemption of the wife as a witness of necessity applies only to the lawful wife, and it was no ground for quashing the indictment that another incompetent witness also testified before the grand jury.

The fact that witnesses were sworn and testified against defendant whose names were not indorsed upon the indictment does not constitute error. Section 4097, Revised Statutes, 1889, expressly secures to the state the right to call witnesses other than those indorsed on the indictment. And while this court has invariably held that the spirit and letter of our law both concurred in requiring the names of the witnesses to be indorsed in order to enable a defendant to know by whom the charge against him is to be established, still it must often occur that new evidence is discovered, and no good reason appears why the state should be denied the right to use it. There is nothing in this record to show an abuse of this right. State v. Steifel, 106 Mo. 129.

II. Error is also predicated upon the admission in evidence of the certified copy of the record of the probate court of Leavenworth county, Kansas.

This objection is utterly without merit. The laws of Kansas which provided for a license to marry; which authorized the probate judge to perform the marriage-ceremony ; which provided for the return of the license to the probate judge; which provided for recording the license and return thereon; and which made certified copies of the record thereof evidence in all courts, were in evidence. These laws are in harmony with our own and the same credit is due here to the action of the judge thus duly certified as would have been accorded the same in Kansas. The objection was properly overruled.

The objection made here for the first time that the judge could not be ex officio clerk of his own court is equally unsupported by reason or authority.

III. The demurrer to the evidence was properly overruled. Such clear convincing proof of the commission of a crime is rarely ever made in our courts. The judgment is affirmed.

Sherwood and Burgess,. JJ., concur.