Davis v. People
| Decision Date | 30 January 1928 |
| Docket Number | 12012. |
| Citation | 83 Colo. 295,264 P. 658 |
| Parties | DAVIS v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.
Horace O. Davis was convicted of bigamy, and he brings error and asks that the writ be made a supersedeas.
Judgment affirmed.
Harry G. Saunders, of Denver, for plaintiff in error.
Hon William L. Boatright, Atty. Gen., and William W. Gaunt, Asst Atty. Gen., for the People.
Plaintiff in error, hereinafter referred to as defendant, was convicted of bigamy and sentenced to the penitentiary for a term of not less than six months and not more than two years. To review that judgment he brings error and asks that the writ be made a supersedeas.
Three questions only require consideration here: (1) Had the trial court jurisdiction? (2) Was the verdict supported by the evidence? (3) Is the court's 'additional instruction' free from error and was it properly given?
In June, 1914, defendant married Lotta in California and they separated in 1917. In 1918 she informed him by letter that she had procured a divorce. He was never served with summons in that action, had no other actual notice of it, and made no further inquiry concerning it. In 1919 he married Elizabeth in Arizona, having theretofore told her he had been married and divorced. They continued to live together as husband and wife, came to Denver in December, 1926, and while so residing here in August, 1927, defendant left home on a 'trip.' After leaving he learned, through a letter from his mother, that the decree of divorce from his first wife had not in fact been entered until 1921. He corresponded with Elizabeth until about the middle of September, 1927, but did not disclose to her this additional information concerning the date of his divorce and said nothing to her about the invalidity of her marriage or his intention to abandon her. On the 23d of that month he married Maude at Durango, Colo. They lived together a few days as husband and wife at Durango, and Grand Junction, Colo and then came to Denver together on October 6, where they so consorted for about 24 hours. Thereupon, on complaint of Elizabeth, defendant was arrested. The information charges defendant's marriage to Elizabeth; that she was his lawful wife on September 23, 1927; and that at said date he married Maude at Durango 'knowing that his said wife Elizabeth Zeller was living, * * * and since said last-named date and with full knowledge that the said marriage * * * to the said Maude Burford was unlawful and void, did unlawfully cohabit and live together as husband and wife' with said Maude 'in the city and county of Denver and state of Colorado.'
1. Defendant says he could only be tried where the alleged bigamous marriage was contracted, i. e., in La Plata county, Colo. (of which Durango is the county seat). Such is the general law.
'In the absence of statute providing otherwise, the offense of bigamy can be prosecuted and punished only in the county in which the unlawful marriage was solemnized, and the venue must be laid in that county.' 7 C.J. p. 1167, § 31.
The Attorney General says our statute provides otherwise. It reads:
* * *' Section 6835, C. L. 1921.
If the statute should be interpreted as construed by the Attorney General, that portion of it relating to bigamous marriage outside the state would be wholly superfluous. The act clearly contemplates the application of the general rule when the alleged bigamous marriage is solemnized in Colorado. Defendant was therefore entitled to a trial in Durango. He maintains this was obligatory under our Constitution.
'In criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.' Article 2, § 16, Colo. Const.
This provision, however, is solely for the benefit of the accused. It involves no question of public policy, and defendant could waive it at his pleasure. If this were not...
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