Witt v. State, 59 So. 715

PELHAM, J. —

The defendant was convicted of bigamy, and appeals.

Thе charging part of the indictment, as set out in the record, is as follows: “The grand jury of said county charge that, before the finding of this indictment, William Witt, having a wife then living, unlawfully married on Peаrl Randolph, against the peace and dignity of the state of Alabama.” It is insisted, and wаs raised’ by motion and demurrer in the trial court, that the indictment is void, or fails to charge an offense, because, first, it does not aver that the defendant married “one” Pearl Randolph; and, second, for that it fails to aver that Pearl Randolph is a woman. The use of the word “on” in the indictment-in lieu of ‍‌​‌‌​​​‌‌​‌‌​​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌‌​‍the word “one” is of no consequence, аs the word “one” prefaced to the name of the person adds nothing to the mеaning or understanding, or definiteness, of description. The error is manifestly clerical, and the sense is not so obscured that a person of ordinary intelligence cannоt from the context determine with certainty the meaning. As said by this court in Sanders v. State, 2 Ala. App. 13, 56 South. 69 : “In our opinion an оrdinary man, reading the indictment for the purpose of ascertaining its meaning, would in all probability not detect the defect complained of, and, if he did so, he would from the context know, as a matter of common sense, the exact word which was in faсt used, and that the error complained of was merely clerical.” It is impossible thаt the defect complained of could have misled any one of common understanding, or in any way injured the defendant or prejudiced his rights in the slightest degree or remotеst manner. The defendant, court, and jury, on an inspection of the indictment or hearing it read, would know with certainty what it intended to charge. “Before an objection because of false grammar, incorrect spelling, or mere clerical errors, is entertained, the court should be satisfied of the tendency of the error to mislead, оr to leave in doubt as to the meaning a person of common understanding, reading, not for the purpose of finding defects, but to ascertain what is intended to be charged.” — Grant v. State, 55 Ala. 201. Except as to the clerical error abovе discussed, the indictment is in the Code form (form No. ‍‌​‌‌​​​‌‌​‌‌​​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌‌​‍22, p. 663, of the Criminal Code), and is sufficient (Hankinson v. State, 2 Ala. App. 110, 57 South. 61; Bailey v. State, 99 Ala. 143, 13 South. 566; Smith v. State, 63 Ala. 55; Wilson v. State, 61 Ala. 151; Weed v. State, 55 Ala. 13). It was not necessary to aver in the indictment that one of the persons was a man and the other a woman. — Rich v. State, 1 Ala. App. 243, 55 South. 1022; McLeod v. State, 35 Ala. 395.

The certificates to the copy of the records of Lincoln сounty, Tenn., of the marriage of the defendant to Mary Washburn ‍‌​‌‌​​​‌‌​‌‌​​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌‌​‍are in accordanсe with the United States statute (3 Fed. Stat. Ann. § 906, p. 39, U. S. Comp. St. 1901, p. 677; Reid v. State, 168 Ala. 118, 53 South. 254), and the certified copy was properly admitted in evidence.

The decree of divorce granted by the supеrior court of Oklahoma county, state of Oklahoma, did not by the terms of the decree become absolute or take effect until six months after the 14th day of May, 1910, and the undisputed evidence shoAved that the defendant, having a wife then living, contracted а second marriage with Pearl Randolph on the 25th day of June, 1910, before the decrеe of divorce, even ‍‌​‌‌​​​‌‌​‌‌​​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌‌​‍if valid, became operative or of force and effect as a decree. The decree Avas inoperative on its faсe until the six months have expired, and in fixing the status of the parties during that period is in effect but a decree nisi, and a marriage contracted Avith another party within such period by either of the parties to the suit is void, and necessarily then is- bigamous. This is the English rule. — Warter v. Warter, 15 P. D. (Law Reр.) 152. - Decrees granted under the provisions of the statutes of our state, prohibiting marriage of the parties until the decretal order authorizing marriage becomes оperative as to ‍‌​‌‌​​​‌‌​‌‌​​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‌​‌​​‌​‌​​​‌‌‌​‍them, have received the same construction. — Barfield v. Barfield, 139 Ala. 290, 35 South. 884.

To constitute bigamy under our statute (Code, § 6389), it is only necessary that a person having a former wife or husband living contract a marriage with another (Reid v. State, 168 Ala. 118, 53 South. 254) ; and under the undisputed testimony, these facts having been shown by competent evidence, the state was entitled to the general chаrge, and the rulings on the evidence, not going to the admission of this evidence, if error, wоuld not be prejudicial to the defendant, authorizing a reversal of the case.

Thе only evidence, except the decree of divorce herein-above discussed, introduced by the defendant, was evidence showing his good character, and this alone is not sufficient to generate a reasonable doubt of guilt.— Webb v. State, 106 Ala. 52, 18 South. 491; Scott v. State, 105 Ala. 57, 16 South. 925, 53 Am. St. Rep. 100; Johnson v. State, 102 Ala. 1, 16 South. 99; Springfield v. State, 96 Ala. 81, 11 South. 250, 38 Am. St. Rep. 85; Johnson v. State, 94 Ala. 35, 10 South. 667; Pate v. State, 94 Ala. 14, 10 South. 665; Williams v. State, 52 Ala. 411.

The record contains no reversible error, and the case will be affirmed.

Affirmed.

Case Details

Case Name: Witt v. State

Court Name: Alabama Court of Appeals

Date Published: Jun 13, 1912

Citations: 59 So. 715; 5 Ala. App. 137; 1912 Ala. App. LEXIS 149

Court Abbreviation: Ala. Ct. App.