Ferrell v. State

• Decision Date: 24 March 1903
• Citation: 45 Fla. 26,34 So. 220
• Parties: FERRELL v. STATE.
• Court: Florida Supreme Court

34 So. 220

45 Fla. 26

FERRELL v. STATE.

Florida Supreme Court, Division B.

March 24, 1903

Error to Circuit Court, Santa Rosa County; Lucius J. Reeves, Judge.

T. B Ferrell was convicted of bigamy, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. An indictment for bigamy, under section 2603, Rev. St., which alleges that at the time of the second marriage the defendant had a lawful living wife by a former marriage therein alleged, is not open to the objection that it fails to allege that the former marriage was a valid marriage, or that the second marriage was unlawful; nor is an indictment under that statute bad because of its failure to allege the time and place of the first marriage, nor because it fails to negative the exceptions mentioned in section 2604, Rev. St.

2. The court has power to authorize a grand jury to select one of its members as foreman of the body in case the foreman selected at its organization be sick, absent, or otherwise unable to act; and the indorsement of true bills by the foreman so selected will be valid, even though he indorse them as 'foreman,' and not as 'acting foreman.'

3. Where it appears from the minutes of the court that the grand jury, under authority of the court, selected one of its members as foreman to act during the absence of the regular foreman, who was sick, a bill duly presented by the grand jury, and indorsed by the foreman so selected, will, in the absence of evidence to the contrary, be presumed to have been found, indorsed, and presented to the court during the absence of such regular foreman.

4. The refusal of the trial court to permit counsel for defendant in a criminal case to interrogate the jurors, after they were sowrn in chief, as to whether they were upon the grand jury that found the indictment, cannot be disturbed by an appellate court, where no excuse for the failure to put the questions on the voir dire examination was shown, except that the matter was 'overlooked,' and where it was not suggested to the court that there was any reason to believe that any juror was a member of such grand jury.

5. An original marriage license from the office of a county judge ad well as the original record thereof, is admissible in evidence as against the objection that the originals cannot be properly admitted, but only duly certified copies thereof.

6. Objections to testimony not raised in the trial court will not be considered by an appellate court.

7. After the evidence in a criminal case has been closed on both sides, it is within the discretion of the court to permit the state to introduce additional evidence in furtherance of justice.

8. In a prosecution for bigamy the sworn testimony of the defendant in a suit for divorce brought by him against his wife by the former marriage, offered on behalf of the state, is not rendered inadmissible by the fact that such testimony was not given in answer to interrogatories, but was put in narrative form by defendant's counsel in that suit, and the defendant swore to such written narrative before the master after its being read over to him.

9. In prosecutions for bigamy, proof of the former marriage in fact, and that it was followed by cohabitation and the birth of children, will, in the absence of any testimony tending to show some legal impediment to the former marriage, raise a presumption that no impediments existed; and proof of the nature stated will justify the jury in finding that the former marriage was valid, in the absence of evidence tending to show some legal impediment thereto.

10. Evidence examined, and found sufficient to support the verdict.

COUNSEL A. G. Campbell, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

CARTER P.J.

In October, 1902, plaintiff in error was convicted in the circuit court of Santa Rosa county of the crime of bigamy and from the sentence imposed upon him sued out the present writ of error.

The first error assigned is based upon the ruling denying defendant's motion to quash the indictment. We will dispose of the several objections argued in this assignment in the order named in the brief. It is contended that the indictment fails to allege that the first marriage was valid, or that the first wife was living at the time of the second marriage. We see no basis for this contention, inasmuch as the indictment distinctly alleges that at the time of the second marriage the defendant had a lawful living wife by the marriage theretofore contracted. The wife of the former marriage could not be a lawful wife if the marriage was not valid. Bishop's Stat. Crimes, § 602a; Kopke v. People, 43 Mich. 41, 4 N.W. 551; Hills v. State, 61 Neb. 589, 85 N.W. 836, 57 L. R. A. 155. It is also insisted that the time and place of the first marriage is not alleged. In Cathron v. State, 40 Fla. 468, 24 So. 496, this question was fully considered, and ruled adversely to defendant's contention. Again, it is argued that the indictment does not allege that the second marriage was unlawful. True, it is not directly alleged that the second was unlawful, but it is alleged that the second was consummated while the defendant had a lawful living wife by the prior marriage alleged. This is sufficient to show that the second was unlawful. Bishop's Stat. Crimes, § 603. Finally, it is insisted that the indictment is bad because it fails to negative the exceptions found in section 2604, Rev. St., as amended by chapter 4963, p. 110, Acts of 1901. The indictment is founded upon section 2603, Rev. St. The two sections read as follows: '2603. Punishment.--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 by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding five hundred dollars.

'2604. Exceptions.--The provisions of the preceding section shall not extend to any person whose husband or wife has been continually remaining beyond sea, or has voluntarily deserted the other and remained absent for the space of three years continuously, the party marrying again not knowing the other to be living within that time, nor to mony.'

The question here presented was fully considered and determined against the contention of defendant in the following well-considered authorities: Commonwealth v. Jennings, 121 Mass. 47, 23 Am. Rep. 249; State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754; Fleming v. People, 27 N.Y. 329. See, also, Bishop's Stat. Crimes, § 606; Baeumel v. State, 26 Fla. 71, 7 So. 371. The authorities cited express the law correctly.

The defendant filed pleas in abatement as follows: '(1) That the said indictment was found by a grand jury that had a foreman pro tem. during the absence of the regular foreman.

'(2) That there were two foreman of the said grand jury when the said bill was found.

'(3) That the said indictment is not indorsed as a true bill by the regular foreman of the grand jury.

'(4) That the said indictment is indorsed as a true bill by one J. D. C. Newton, who was not the foreman chosen at the time the grand jury was impaneled.

'(5) Because the said indictment was indorsed as a true bill by one J. D. C. Newton, foreman, when in truth and in fact he was only an action foreman.'

The state demurrer to the first, fourth, and fifth pleas. The demurrer was sustained, and the ruling thereon is the basis for the second assignment of error. There was no error in this ruling. The first plea was bad, because, as shown hereinafter, a grand jury can legally have a foreman pro tem. in the absence of the regular foreman. Besides, the plea does not allege with certainty that the case against the defendant was considered or the indictment found or returned into court during the absence of the regular foreman. The fourth plea was bad because, as will be shown in a subsequent part of this opinion, the indictment can lawfully be indorsed by a foreman of a grand jury, duly selected, other than the one chosen at the time the grand jury were originally impaneled; and this plea does not deny that the foreman who indorsed the indictment was duly selected. The fifth plea was bad because the fact that the foreman indorsed the bill as foreman, when in truth he was only an acting foreman, constitutes mere irregularity, in no manner affecting any substantial right of the defendant. If the party indorsing the bill as foreman was duly authorized to act as such--and the plea does not deny that fact--the failure to use the word 'acting' before the word 'foreman' following his signature to the indorsement, 'A true bill,' would not vitiate the indictment. White v. State, 93 Ga. 47, 19 S.E. 49; State v. Sopher, 35 La. Ann. 975; State v. Brown, 31 Vt. 602.

The state joined issue upon the second and third pleas, and upon the trial of those issues the only evidence introduced was the minutes of the court relating to the organization of the grand jury that found the indictment. From these it appears that upon the organization of the grand jury J. W. Baggett Sr., was duly selected as foreman, and that the court ordered that his name be entered of record as foreman of the grand jury for and during the term. On a subsequent day of the term the following minute entry appears: 'This day came the grand jury into court, and reported that their foreman, J. W. Baggett, Sr., was sick, and unable to attend their session. The court thereupon instructed the grand jury to retire and select a foreman to act during the absence of their foreman, J. W. Baggett, Sr. The grand jury then retired, and after due deliberation returned into the court, and...