State v. Steupper

Oct 17, 1902
Reporters:
,
Before:
McClain
McClain, J. —

1 It is provided by Code, section 4938, that “if any person whe has a former husband or wife living marry another person, or continue to cohabit with such second husband or wife, he or she, except in the cases mentioned in the following section, is guilty of bigamy * * * ” The indictment in this case alleges that “the said John A. Kelly on or about the 1st clay of January in the year of our Lord one thousand nine-hundred and one, in the county as aforesaid, to wit, Fremont county, Iówa, did willfully, unlawfully, and feloniously cohabit with one Mrs. Margret Carter, as husband and wife, after he, the said John A. Kelly, had willfully, unlawfully, and feloniously married the said Mrs. Margret Carter on the 9th day of December, 1899, in Nebraska City, Nebraska, he, the said John A. Kelly, at the time of said marriage and cohabitation being a married man, and having a lawful wife living, to wit, Mary Kelly, the former *593marriage having taken place in Missouri in 1873.” Counsel for appellant contend that the indictment is defective in not charging the cohabitation as continuing, but we think this objection is fully met by the case of State v. Nadal, 69 Iowa, 480. And see Tucker v. People, 117 Ill. 88 (7 N. E. Rep. 51). It is not the continuation of cohabitation within This state which is important, but it is the fact that in this state cohabitation continues, which was commenced in another state under the bigamous marriage. The length of time is wholly immaterial.

2 The evidence as to continuation of cohabitation in the state was material, as showing that defendant held himself out as married under the bigamous relation, and therefore it was not objectionable as tending to prove any wrongful act not covered by the indictment.

Other errors áre assigned, but they are based on the same proposition involved in the objection made to the indictment, and need not be further considered. — Affirmed.