State v. Fitzgerald
| Decision Date | 30 April 1882 |
| Citation | 75 Mo. 571 |
| Parties | THE STATE, Appellant, v. FITZGERALD. |
| Court | Missouri Supreme Court |
Appeal from Gasconade Circuit Court.--HON. A. J. SEAY, Judge.
AFFIRMED.
D. H. McIntyre, Attorney General, for the State.
Parker, Clement & Neuenhahn for respondent.
The defendant was indicted in the county of Gasconade for the crime of bigamy, charged to have been committed by marrying one Jackson Hughes, who, it is averred, had at the time a lawful wife living. The unlawful marriage is charged to have been contracted in the county of Maries, and the defendant is also charged in the same count with having cohabited with the said Hughes in the county of Gasconade.
Cohabitation within this State, by persons unlawfully married, does not of itself constitute the commission of the crime of bigamy in the county where such cohabitation takes place, unless the second unlawful marriage was contracted or solemnized without this State. Section 1535 of the Revised Statutes, is as follows: “Every person having a husband or wife living, who shall marry another person without this State, in any case where such marriage would be punishable if contracted or solemnized within this State, and shall afterward cohabit with such other person within this State, shall be adjudged guilty of bigamy, and punished in the same manner as if such second marriage had taken place within this State.” This section can have no application to the defendant, for the additional reason, that she is charged to have been unmarried when she intermarried with Hughes. The allegation of cohabitation, therefore, charges no offense under the statute against bigamy.
The circuit court of Gasconade county had no jurisdiction to try the defendant for the crime charged by reason of the fact that she was apprehended in that county. When the apprehension of the offender is made a ground of jurisdiction, under section 1536 of the Revised Statutes, such apprehension must have occurred prior to the finding of the indictment, and must be alleged in the indictment. State v. Griswold, 53 Mo. 181.
It is unnecessary to notice other objections to the indictment.
The defendant having been indicted in a county other than that in which the crime charged is alleged to have been committed, the judgment of the circuit court sustaining the demurrer to the indictment will be affirmed. Ex parte Slater, 72 Mo. 102; State v. Hiram...
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State v. Fraker
...the commission in Ray county of an offense prohibited by law. 1 Wharton, Crim. Law, sec. 181; Ex parte Slater, 72 Mo. 102; State v. Fitzgerald, 75 Mo. 571; State v. McGraw, 87 Mo. 161; State Hatch, 91 Mo. 568; State v. Smiley, 98 Mo. 605; In re McDonald, 19 Mo.App. 370; People v. Murray, 14......
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State v. Long
... ... statute (Revisal 1905, § 3361), though the second marriage is ... solemnized in another state, the defendant will be adjudged ... guilty of bigamy here if he shall thereafter cohabit with ... such person within this state; citing State v ... Fitzgerald, 75 Mo. 571, and other cases. While the ... second marriage elsewhere commences the bigamy, the ... subsequent living here in the bigamous relation relates back ... and gives validity to our statute which confers jurisdiction, ... though the second marriage "has taken place" in ... another ... ...
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State v. Stuart
...element of the offense therein described. The offense was completed in Johnson county when the second marriage was solemnized. State v. Fitzgerald, 75 Mo. 572. The indictment should have been preferred by the grand jury of Johnson county unless it can be upheld by force of the last clause o......
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Ex parte Brinkman
...marriage was solemnized. The venue must be laid in that county. 7 C.J. 1167. To the same effect are the following cases: State v. Fitzgerald, 75 Mo. 571; Walls State, 32 Ark. 565; Beggs v. State, 55 Ala. 108; Brewer v. State, 59 Ala. 101. But it is unnecessary to consider, in this case, the......