Farewell v. Commonwealth

• Decision Date: 14 January 1937
• Citation: 189 S.E. 321
• Court: Virginia Supreme Court
• Parties: FAREWELL. v. COMMONWEALTH.

189 S.E. 321

FAREWELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1937.

Error to Circuit Court, Tazewell County; A. C. Buchanan, Judge.

Posey H. Farewell was convicted of bigamy, and he brings error. Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY,

JJ.

W. B. Snidow and Walker Williams, both of Pearisburg, for plaintiff in error.

Abram P. Staples, Atty. Gen. and D. Gardner Tyler, Jr., Asst. Atty. Gen., for the Commonwealth.

SPRATLEY, Justice.

Posey H. Farewell was indicted at the November term, 1935, by a grand jury in the circuit court of Tazewell county, for the violation of section 4538 of the Code of Virginia, alleging bigamy. After an amendment to the indictment by the trial court, he was, at the February term, 1936, tried and convicted by a jury, and sentenced to serve three years in the State Penitentiary.

The indictment upon which he was tried and convicted alleged that "Posey Henry Ferrell, alias P. H. Farwell, alias Posie H. Farewell heretofore, to-wit: on the---- day of ----, 1932, in the the County of Sullivan, in the State of Tennessee, did marry and have for his wife, one, Katherine V. Jornell, and afterward, while he, the said Posey Henry Ferrell, alias P. H. Farwell, alias Posie H. Farewell, was so married to the said Katherine V. Jornell, did, on the ----day of February, 1935, in Tazewell County, Virginia, feloniously and unlawfully marry and take to wife, one, Edna Cordle, the said Katherine V. Jornell being still alive, against the peace and dignity of the Commonwealth of Virginia."

The indictment, as returned by the grand jury, did not contain the words "In Tazewell County, Virginia, " after the words "----day of February, 1935." Upon the calling of the case for trial, the Commonwealth, by its attorney, moved the court to allow the indictment to be amended by inserting the words, "in Tazewell County, " in the place indicated. The amendment was allowed over the objection of the accused, and the case proceeded to trial upon the amended indictment.

The accused entered a formal plea of not guilty. None of the evidence is incorporated in the record, but there is no contention that the evidence did not fully support the allegations of the amended indictment. The accused does not claim that he was taken by surprise, or that he asked for and was denied a continuance.

The question raised by the accused is solely one of law. His only assignment of error is based upon the action of the trial court in making the above amendment to the indictment before he pleaded thereto.

The accused contends that since bigamy is a statutory offense, one of the essential elements of that offense is that the second, or bigamous, marriage must be entered into in this State, or that, if entered into outside of this State, cohabitation must be had in this State; that, therefore, the omission of an allegation from the indictment returned by the grand jury, either that the second marriage was entered into in this State, or that cohabitation after the second marriage took place in this State, renders the indictment fatally defective; and that the amendment made by the trial court made an indictment out of one which charged no offense at all.

Bigamy was not punishable at common law, but was regarded as an offense of ecclesiastical cognizance. It was, however, during the reign of Edward I of England recognized as a statutory offense, and is so carried into the Virginia statutes.

We find "bigamy" defined as follows:

"The state of a man who has two wives, or of a woman who has two husbands, living at the same time." First Bouvier's Law Dictionary, Rawle's 3d Rev. p. 343.

"Bigamy is committed when a person who is already legally married, marries another person during the life of his wife, or her husband, * * *." 2 Brill, Cyc. Crim. Law, § 1125, p. 1748.

"The act of ceremoniously marrying one person when already legally married to another." Webster's International Dictionary (2d Ed.) Unabridged.

From these definitions and from like definitions given by the courts in numerous cases, it will be seen that the essential of the offense consists of a second marriage of a person who already has a living consort. The overt act is entering into the second marriage. Bigamy is committed whenever and wherever such second marriage is performed. Where and how a person may be punished, either for entering into, or for continuing to engage in the unlawful relation, is a matter dependent upon the statutes of the State having jurisdiction over the offending person.

Va. Code 1936, § 4538, provides, as follows:

"Person marrying, when former husband or wife is living; how punished.--It any person, being married, shall, during the life of the former husband or wife, marry another person in this State, or if the marriage with such other person take place out of the State, shall thereafter cohabit with such other person in this State, he shall be confined in the penitentiary not less than three nor more than eight years."

The statute gives a complete definition of "bigamy." Inasmuch as it is essential that the second marriage be entered into, it is possible that the two marriages may take place in different States. The statute recognizes this situation, and the unlawful nature of the second marriage wherever performed. In order to prevent its performance, or continuance of such unlawful relation in Virginia, it provides the same measure of punishment where the second marriage takes place out of this State, and the bigamous person cohabits in this State with the second consort, that it does when the second marriage takes place within this State.

Either the second unlawful marrige, or the cohabitation after the second unlawful marriage has been entered into out of this State, must take place within this State to give our courts jurisdiction. Neither the place of marriage, nor the place of cohabitation, is an element of the nature or character of the crime. The venue is the element of territorial jurisdiction as in all criminal cases. Every crime to be punished in Virginia must be committed in Virginia.

So murder, rape, or robbery must be committed within the confines of this State to give jurisdiction to its courts. Yet, surely, it cannot be claimed that an allegation in the indictment that such a crime has been committed in Virginia is any essential of the offense, or has any relation to the nature and character thereof.

In the case before us, the indictment returned by the grand jury fully charged bigamy; that is, the entering into of the second unlawful marriage while the accused had a lawful wife still living. The indictment merely omitted to state where, the second unlawful marriage took place; but contained the usual phrase "against the peace and dignity of the Commonwealth of Virginia." The mere offense of entering into the second marriage would not be against the peace and dignity of Virginia unless it took place in Virginia. It would be bigamy, however, wherever committed, just as murder is murder if committed in another State. The allegation of the place where the offense is alleged to be committed furnishes the venue.

It is true that it was necessary in Virginia at one time for records in criminal cases to include evidence of venue. Anderson v. Commonwealth, 100 Va. 860, 42 S.E. 865. However, since this court has adopted rule 22, the question of venue cannot be raised for the first time in this court. Proof of venue, therefore, is not regarded as material, so far as the merits of the prosecution are concerned, and so the allegation of venue is not a part of the crime. An amendment to the indictment laying the venue does not change the nature of the offense.

Carrying out the policy of this State to have criminal cases tried on their merits, and in order to avoid a delay and miscarriage of justice on account of formal and technical defects often appearing in indictments, sections 4876, 4877, 4878, and 4879 of the Virginia Code 1936, were enacted in 1919, and some liberal changes made in section 4875. The cases cited by the plaintiff in error, which were decided before the enactment of these statutes, or in which the indictments were defective and no amendments were made, or were permissible, are not in point here, save to prove the advisability and necessity of the present statutes.

Virginia Code 1936, § 4877, with which we are directly concerned here, is as follows:

"At any time before the defendant pleads, a defective indictment for treason or felony may be amended by the court before which the trial is had that does not change the character of the offense charged. After such amendment has been made, the defendant shall be arraigned on the indictment as amended, and the trial shall proceed as if no amendment had been made; but if such amendment operates as a surprise to the defendant, he shall be entitled, upon request, to a continuance of the case."

At the end of this section (4877) is found the comment of Judge Martin P. Burks, one of the Revisors of the Code of 1919 (5 Va.Law.Reg. (N.S.) 97, 104):

"It has been the policy of the state to have criminal cases as well as civil cases tried on their merits, and as far as possible to ignore mere formal defects. This is well illustrated by the powers [given] the court of appeals in misdemeanor cases. * * * The revisors adopted the same policy with reference to all crimes as far as objections apply only to technical difficulties, and liberal provisions are made for amendment of indictments or presentments and indictments for treason or felony,...