Ford v. State

• Decision Date: 03 November 1920
• Docket Number: Criminal 484
• Citation: 192 P. 1117,21 Ariz. 567
• Parties: FRANK FORD, alias FRANCIS FOURDE, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

192 P. 1117

21 Ariz. 567

FRANK FORD, alias FRANCIS FOURDE, Appellant, v. STATE, Respondent

Criminal No. 484

Supreme Court of Arizona

November 3, 1920

APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge. Affirmed.

Mr. Sam H. Kyle, Mr. Maurice Blumenthal and Messrs. Boyle & Pickett for Appellant.

Mr Wiley E. Jones, Attorney General (Mr. Louis B. Whitney, on the brief), for the State.

OPINION

CUNNINGHAM, C. J.

The defendant demurred to the information, and the court overruled the same. The appellant assigns error, alleging that the information failed to allege the time and place of the first marriage, and that it failed to allege facts sufficient to show that any valid second marriage could have been performed or entered into.

The statute defines bigamy as follows:

"275. Every person having a husband or wife living, who marries any other person except in the cases specified in the next section, is guilty of bigamy."

This statute is identical in wording with Penal Code of California, section 281. This statute, in words, has been on our books since 1887, and possibly before that date. See Pen Code 1887, par. 475. The paragraph was carried forward in the 1901 compilation as paragraph 246, Penal Code of 1901. In Territory v. Alexander, 11 Ariz. 172, 89 P. 514, the statute was declared inoperative for the reasons stated therein. Technically, the statute was made operative for the first time when Penal Code of Arizona of 1913 took effect after statehood. During the time this statute lay dormant on the territory statute books, the Supreme Court of the state of California, in 1882, in the case of People v. Geisea, 61 Cal. 53, held that an indictment following the statute without stating at what place the defendant was first married is sufficient. In People v. Priestley, 17 Cal.App. 171, 118 P. 965, the court of appeals of California says in this respect (page 967 of 118 Pac. and page 176 of 17 Cal. App.):

"There is no merit in the respondent's contention that the information is defective in not alleging the date or place of the first marriage. It is immaterial when or where the first marriage took place if the accused, at the time of the second marriage, had a wife living" -- citing case, including Hutchins v. State, 28 Ind. 34; State v. Hughes, 35 Kan. 626, 57 Am. Rep. 195, 12 P. 28.

See, also, State v. Hughes, 58 Iowa 165, 11 N.W. 706; Commonwealth v. McGrath, 140 Mass. 296, 6 N.E. 515. Vermont (State v. La Bore, 26 Vt. 765) and Kentucky (Davis v. Commonwealth, 13 Bush [Ky.], 318) and a few other states hold adversely.

We prefer to hold with California that the time and place of the first marriage need not be stated in the information charging bigamy under paragraph 275, Penal Code of Arizona of 1913.

The further objection to the information urged is that the information fails to allege that the person who performed the second marriage was legally authorized to perform the marriage. This is an objection to a detail included in the act of marriage. The allegation in the information is in the words of the statute as nearly as the use of proper language permits. The statute is (paragraph 275), "Every person having a husband or wife living, who marries any other person," and the information charges that the accused "did then and there knowingly, unlawfully, and feloniously marry one Maria Earl," etc. This is the allegation of the ultimate fact of a marriage, as to which, if the former wife of the accused was not then in existence, such second marriage would have been a legal marriage. The fact that the accused had a wife then living, and such fact appearing in the information, shows on its face, to the court and to the accused, that the crime is charged against the accused.

Under the well-recognized rules of pleading, the prosecution sufficiently charges the offense whenever the information follows the statute defining the crime prosecuted. The information need not set forth the facts giving authority to the person who performs the second marriage, but the prosecution must prove the details of a marriage, including prima facie the authority of the person officiating. Cases that support this view are Hayes v. People, 25 N.Y. 390, 82 Am. Dec. 364, and State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754. The information was not subject to the objection urged by the appellant, and it appears to be sufficient in all other respects.

The appellant assigns as error the introduction in evidence of the document purporting to be a record of the first marriage of the accused with his alleged living first wife, Beatrix L. de Ford. The document purports to be a record of the marriage of Mr. Francisco Willington Ford and Miss Beatrix Loya by Wenceslao Briceno, judge of the civil state of Mexico, celebrated on the eighteenth day of June, 1910, after notice and before witnesses named. A copy of such record is certified on the eighteenth day of September, 1919, at the city of Mexico by Enrique Torres, the chief judge of the department of deceased and archives, with seal attached. The Governor of the federal district on September 19, 1919, certifies that the signature attached is the signature of the chief judge of that district. The Governor's signature is certified as the signature of an officer of the foreign affairs department of the republic of Mexico, and in turn this official's signature is authenticated by the certificate of Thomas McEnelly, vice-consul of the United States of America at Mexico, Mexico, with the seal.

This document, including the various certificates, was admitted in evidence as Exhibit "B," over the objections of the defendant. The appellant assigns the admission of this evidence as error, for the reasons, viz., the facts do not appear that the laws of Mexico require that such a record be kept, nor that the officer certifying to the record is the officer legally charged with the custody of the record. The last objection is repeated in different terms. The record, if authenticated to the satisfaction of the trial court, may be received in evidence for whatever it may be worth as a circumstance, notwithstanding the defects mentioned. The...