Ferrell v. State

CourtUnited States State Supreme Court of Florida
Writing for the CourtCARTER, P.J.
Citation45 Fla. 26,34 So. 220
PartiesFERRELL v. STATE.
Decision Date24 March 1903

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 [45 Fla. 28] 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 [45 Fla. 29] 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 [34 So. 221] 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 [45 Fla. 30] 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...

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26 practice notes
  • Powell v. State, 8 Div. 322.
    • United States
    • Supreme Court of Alabama
    • March 24, 1932
    ...Ryan v. Riverside, 15 R.I. 436; 8 A. 246; Stewart v. Ewbank, 3 Iowa, 191; State v. Whiteside, 49 La. Ann. 352, 21 So 540; Ferrell v. State, 45 Fla. 26, 34 So. 220; Whitehead v. State, 206 Ala. 288, 90 So. 351. Without regard, however, to the foregoing, there is no merit in the appellants' a......
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...State v. Whitesides, 49 La.Ann. 352, 21 So. 540; Arkansas Southern Railway Co. v. Loughridge, 65 Ark. 300, 45 S.W. 907; Ferrell v. State, 45 Fla. 26, 34 So. 220; Turner v. Hahn, 1 Colo. 23. The court called upon the parties to exercise their rights under the statute. Counsel for appellant c......
  • Hoodless v. Jernigan
    • United States
    • United States State Supreme Court of Florida
    • December 9, 1903
    ...572, 26 So. 713; Brown v. State, 44 Fla. ----, 32 So. 107; Lawrence v. State, 45 Fla. ----, 34 So. 87; Ferrell v. State, 45 Fla. ----, 34 So. 220; Brown v. State, 46 Fla. ----, 35 So. 82; 8 Ency. Pl. & Pr. 223; Abbott's Trial Brief, Civil Jury Trials (2d Ed.) 242; 1 Thompson on Trials, §§ 6......
  • Porter v. State, No. 76-2040
    • United States
    • Court of Appeal of Florida (US)
    • March 7, 1978
    ...589, 591 (Fla.1957); Walker v. State, 152 Fla. 455, 13 So.2d 4 (1943); Sims v. State, 59 Fla. 38, 52 So. 198 (1910); Ferrell v. State, 45 Fla. 26, 34 So. 220 (1903); Jones v. State, 35 Fla. 289, 17 So. 284 (1895); Koran v. State, 213 So.2d 735 (Fla. 3d DCA 1968); Shea v. State, 167 So.2d 76......
  • Request a trial to view additional results
26 cases
  • Powell v. State, 8 Div. 322.
    • United States
    • Supreme Court of Alabama
    • March 24, 1932
    ...Ryan v. Riverside, 15 R.I. 436; 8 A. 246; Stewart v. Ewbank, 3 Iowa, 191; State v. Whiteside, 49 La. Ann. 352, 21 So 540; Ferrell v. State, 45 Fla. 26, 34 So. 220; Whitehead v. State, 206 Ala. 288, 90 So. 351. Without regard, however, to the foregoing, there is no merit in the appellants' a......
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...State v. Whitesides, 49 La.Ann. 352, 21 So. 540; Arkansas Southern Railway Co. v. Loughridge, 65 Ark. 300, 45 S.W. 907; Ferrell v. State, 45 Fla. 26, 34 So. 220; Turner v. Hahn, 1 Colo. 23. The court called upon the parties to exercise their rights under the statute. Counsel for appellant c......
  • Hoodless v. Jernigan
    • United States
    • United States State Supreme Court of Florida
    • December 9, 1903
    ...572, 26 So. 713; Brown v. State, 44 Fla. ----, 32 So. 107; Lawrence v. State, 45 Fla. ----, 34 So. 87; Ferrell v. State, 45 Fla. ----, 34 So. 220; Brown v. State, 46 Fla. ----, 35 So. 82; 8 Ency. Pl. & Pr. 223; Abbott's Trial Brief, Civil Jury Trials (2d Ed.) 242; 1 Thompson on Trials, §§ 6......
  • Porter v. State, No. 76-2040
    • United States
    • Court of Appeal of Florida (US)
    • March 7, 1978
    ...589, 591 (Fla.1957); Walker v. State, 152 Fla. 455, 13 So.2d 4 (1943); Sims v. State, 59 Fla. 38, 52 So. 198 (1910); Ferrell v. State, 45 Fla. 26, 34 So. 220 (1903); Jones v. State, 35 Fla. 289, 17 So. 284 (1895); Koran v. State, 213 So.2d 735 (Fla. 3d DCA 1968); Shea v. State, 167 So.2d 76......
  • Request a trial to view additional results

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