Davis v. State

• Decision Date: 15 November 1918
• Parties: DAVIS v. STATE.
• Court: Florida Supreme Court

80 So. 65

76 Fla. 459

DAVIS v. STATE.

Florida Supreme Court

November 15, 1918

Error to Circuit Court, Taylor County; M. F. Horne, Judge.

John C Davis was convicted of bigamy, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Under the first clause of section 3526, General Statutes of 1906 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.

In a prosecution under the first clause of section 3526, General Statutes of 1906, an indictment which fails to allege the maiden name of the first spouse of the defendant, but which does allege her name to be Mrs. (giving the name of the defendant), as Mrs. John C. Davis in this case, is not thereby rendered fatally defective and amenable to a motion to quash on that ground.

Under the provisions of section 1518, General Statutes of 1906, a duly authenticated copy of a record of a court of another state with the seal of the court annexed, of an application for marriage license, a certificate that such license was issued, and the return of the minister who united the parties in marriage pursuant thereto, which form a part of the records of such court, is admissible in evidence in the courts of this state.

COUNSEL Chas. P. Diamond, of Perry, for plaintiff in error.

Van C. Swearingen, Atty. Gen., and Worth W. Trammell, Asst. Atty. Gen., for the State.

OPINION

WEST J.

Plaintiff in error was indicted in the circuit court of Taylor county, upon a charge of bigamy. The indictment, omitting formal parts, is as follows:

'The grand jurors of the state of Florida, duly chosen, impaneled and sworn diligently to inquire and true presentment make in and for the body of the county of Taylor upon their oath present that John C. Davis late of said county, on the 16th day of May, A. D. 1916, in the county and state aforesaid did unlawfully marry and have for his wife one Beulah Chancey. He the said John C. Davis did then and there have a former wife living, to wit, Mrs. John C. Davis.'

Upon trial of the case on the charge made in the indictment, a verdict finding him guilty as charged was rendered, whereupon he was sentenced by the court to serve a term of imprisonment in the state prison.

From this judgment writ of error was taken, and the case is here for review.

The first two assignments of error are predicated upon the orders of the trial court in overruling a motion to quash the indictment and a motion for a bill of particulars. The grounds of these motions are the same, namely: (1) That the indictment fails to charge a marriage of the defendant prior to his alleged marriage to said Beulah Chancey; (2) that the indictment fails to show the name of the alleged former wife of the defendant; and (3) that the indictment fails to show the maiden name of the first alleged wife of the defendant.

The indictment is under the first clause of section 3526, General Statutes of 1906, which is in the following language:

'Whoever, having a former husband or wife, living, marries another person, * * * shall * * * be punished,' etc.

It will be observed that the allegation of the indictment with respect to the former wife of the defendant is substantially in the language of the statute. This we think is sufficient. Section 3961, General Statutes 1906, Florida Compiled Laws 1914.

In the case of Cathron v. State, 40 Fla. 468, 24 So. 496, this court held that--

'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...