Cathron v. State
| Decision Date | 18 October 1898 |
| Parties | CATHRON v. STATE. |
| Court | Florida Supreme Court |
Error to criminal court of record, Volusia county; Isaac A Stewart, Judge.
Albert Cathron was convicted of bigamy, and brings error. Affirmed.
Syllabus by the Court
1. Under the first clause of section 2603, Rev. St., prescribing a penalty against one who, having a former husband or wife living, marries another person in this state, the second marriage constitutes the gist of the offense, and must be laid in the indictment with particulars of time and place but the first marriage, being matter of inducement, may be averred without particulars of time and place.
2. Under the second clause of section 2603, Rev. St prescribing a penalty against one who, having a former husband or wife living, continues to cohabit with a second husband or wife in this state, the continued conabitation constitutes the gist of the offense, and must be laid in the indictment with particulars of time and place; but the two marriages, being matters of inducement, need not be averred with particulars of time and place, and are sufficiently charged if alleged to have been contracted with certain named persons, prior to the time of the alleged continued cohabitation.
A. M. Michelson and B. Rabino, for plaintiff in error.
William B. Lamar, Atty. Gen., for the State.
At a term of the criminal court of record of Volusia county, held in April, 1898, the plaintiff in error was convicted upon an information exhibited against him on the 13th day of August, 1895, by the prosecuting officer of that court, charging 'that Albert Cathron, on the 1st day of January, in the year of our Lord one thousand eight hundred and ninety-four, in the county and state aforesaid, with force and arms, did unlawfully continue to cohabit with, and have for his wife, one Vinzula Smith, from the 1st day of January, 1894, to the 13th day of August, 1895, the said Albert Cathron having married the said Vinzula Smith, and, at the time of the said marriage of the said Albert Cathron to the said Vinzula Smith, the said Albert Cathron then and there had, and still has, a former wife living, namely, Julia Cathron, against the form of the statute,' etc., and, from the sentence imposed, sued out this writ of error.
Before arraignment, the defendant moved to quash the information, stating as grounds therefor that the information was vague, uncertain, and impossible in its allegation as to time of the alleged cohabitation and the offense charged; that it did not allege the times and places of defendant's first and second marriages; nor sufficiently charge either of the offenses under section 2603 of the Revised Statutes; nor sufficiently charge any offense under the laws of Florida. The court denied the motion, and this ruling constitutes the only error assigned.
The defendant contends in this court that the information should have alleged the times and places of the two marriages, and further, that it was defective because it alleged an impossible date for his cohabitation with Vinzula Smith. The offense sought to be charged is thus defined by section 2603, Rev. St.: 'Whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this state, shall (except in the cases mentioned in the following section), be punished,' etc. The penalty of this statute may be incurred by one who, having a former husband or wife living, marries another person in this state, or who, having a former husband or wife living, continues to cohabit with a second husband or wife in this state. In the first case, while two marriages must be alleged and proved, the first marriage is mere matter of inducement, requiring neither allegation nor proof that it was entered into at any particular time or place. The second marriage, however, constitutes the gist of the offense, and must be laid with particulars of time and place in order to show that the offense is not barred by limitations, and that it was committed within the...
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