Cornett v. Commonwealth

• Decision Date: 23 September 1909
• Citation: 121 S.W. 424
• Parties: CORNETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

121 S.W. 424

CORNETT v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 23, 1909

Appeal from Circuit Court, Harlan County.

"To be officially reported."

Lloyd Cornett was convicted of bigamy, and he appeals. Affirmed.

W. F Hall and W. C. L. Huff, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

NUNN C.J.

This appeal is from a conviction under the following indictment: "The grand jury of Harlan county, in the name and by the authority of the commonwealth of Kentucky, accuse Lloyd Cornett of the crime of bigamy, committed in manner and form as follows, viz.: The said Lloyd Cornett on the 26th day of October, 1909, before the finding of this indictment and in the county and state aforesaid, having a wife then living by the name of Sarah Cornett, whose name before she married him was Sarah Lewis, to whom the said Lloyd Cornett was lawfully married on the 5th day of June, 1903, in the county of Harlan, state of Kentucky, did unlawfully marry Frankie A. Creech, against the peace and dignity of the commonwealth of Kentucky." Appellant filed a demurrer to this indictment, which was overruled. He then entered a plea of not guilty, and upon a trial before a jury he was convicted and sentenced to three years' confinement in the penitentiary. Appellant asks a reversal for the following reasons: First, the court erred in overruling his demurrer to the indictment. Second, the evidence shows his second marriage was consummated under the belief on his part that his first wife was dead. Third, the court failed to instruct the jury as to the whole law of the case. Fourth, the court erred in instructing the jury as to what weight should be given certain evidence introduced. We will consider these propositions in the order stated.

It appears from the indictment, as copied, that it was alleged that appellant committed the offense of bigamy on the "26th day of October, 1909," by marrying Frankie A Creech, when he at that time had a wife living to whom he was married on the 5th day of June, 1903. The indictment was found on the 26th day of October, 1908, which was 12 months before the date of the commission of the offense as alleged in the indictment. Of course, it was not possible that this could have happened, and it is patent that it was an error on the part of the grand jury in fixing that date. It was also alleged in the indictment that the offense was committed by appellant at a date before the finding of the indictment and after his first marriage on June 5, 1903. This made the indictment good, and appellant could not have been misled by the patent error referred to. In the case of Faustre v. Commonwealth, 92 Ky. 34, 17 S.W. 189, 13 Ky. Law Rep. 347, it was alleged in the indictment that Faustre committed the offense therein charged on a certain day in September, 1891, in Kenton county, Ky.; that he on that day had a living wife, Caroline, to whom he was lawfully married on the 19th of September, 1891, in Ontario, Canada. In discussing this question the court said: "Evidently the figures '1891' were by mistake used instead of '1881' to designate the date of the first alleged marriage, for it is not probable both occurred in September, 1891, or that it was intended to be so stated in the indictment. But section 129, Cr. Code Prac., provides that the statement in the indictment as to the time an offense was committed is not material further than as a statement it was committed before the time of the finding of the indictment, unless the time be a material ingredient in the...