Hiler v. People

• Decision Date: 13 June 1895
• Citation: 41 N.E. 181,156 Ill. 511
• Parties: HILER v. PEOPLE.
• Court: Illinois Supreme Court

156 Ill. 511

41 N.E. 181

HILER

v.PEOPLE.¹

Supreme Court of Illinois.

June 13, 1895.

Error to circuit court, McLean county; Thomas F. Tipton, Judge.

Indictment of John T. Hiler for bigamy. Defendant was convicted and he brings error. Reversed.

R. L. Fleming, for plaintiff in error.

M. T. Moloney, Atty. Gen., and John A. Sterling, State's Atty. (T. J. Scofield and M. T. Newell, of counsel), for the People.

PHILLIPS, J.

At the April term, 1894, of the circuit court of McLean county, the grand jury returned into court an indictment against John T. Hiler for bigamy. The indictment was indorsed ‘A true bill’; the indorsement signed by the foreman, and the names of five witnesses indorsed. On motion the first, second, and third counts were quashed, and on May 25th a trial was had on the remaining counts, and a verdict of guilty under the fifth and sixth counts was found by the jury, and the punishment of the defendant fixed at imprisonment in the penitentiary for the term of one year. A motion for new trial, as also in arrest of judgment, was overruled by the court, and a judgment on the verdict was entered, and the defendant sued out this writ of error.

One of the causes assigned for quashing the indictment was that no evidence was introduced before the grand jury upon which the indictment could have been based. One of the errors assigned presents for our consideration that question. The following affidavit was copied into the record by the clerk, which is claimed to have been filed with the motion to quash: ‘John T. Hiler, being first duly sworn, on his oath deposes and says: That he is the defendant in the above-entitled cause. That he is informed and believes that said indictment herein was procured from the grand jury herein upon illegal evidence, and without certain material and necessary evidence. Affiant says: That he is informed and believes that the grand jury which indicted him had before them no competent evidence of a former marriage between this defendant and the alleged Lizzie Hiler, or between this defendant and any other woman, known or not known, to said grand jurors; nor had they any evidence before them as to whether or not said parties were living at time of marriage to Grace Washburn, or as to whether or not said former marriages, or either of them, were or were not legally dissolved. That neither the said Lizzie Hiler nor the said Adelia Karr were present and testified before said grand jury. That the only other witnesses are Wm. Kane, Grace Washburn, and Robert Maxton, all of Bloomington, Ill. Affiant says that these parties named are known to the state's attorney, and were so known at and for a long time prior to the commencing of said grand jury, and that their places of residence are known and were then known to him; and that the facts herein are known to said witnesses, Lizzie Hiler, and Adelia Karr, and this fact was known to the state's attorney. John T. Hiler.’ Subscribed and sworn to. The motion to quash was incorporated in the bill of exceptions, and thus became a part of the record; but this affidavit was not incorporated in the bill of exceptions, and hence is no part of the record. There was, therefore, nothing before the court showing or tending to show the nature or character of the evidence introduced before the grand jury, so far as appears from this record.

It is also claimed that the court erred in overruling the motion to quash the sixth count of the indictment, because it fails to aver in direct and positive terms that the first wife was still alive, as was held to be necessary in Prichard v. People, 149 Ill. 52, 36 N. E. 103. There the averment of the indictment, ‘the defendant, well knowing the said Eliza Ann Ferguson, his former wife, was then alive,’ was held to be insufficient. Here, however, the indictment is different. After averring that the defendant did unlawfully and feloniously marry Grace Washburn, then follows the following: ‘The said Lizzie Myers, said former wife, being then alive, and the said John T. Hiler well knowing that said Lizzie Myers, his former wife, was then alive, and the said John T. Hiler never having been legally divorced from the said Lizzie Myers and the * * *.’ We regard this averment as sufficient.

It is next contended that no prior marriage was established by the evidence. Section 28, c. 38, of the Criminal Code (Hurd's Rev. St. p. 470) provides: ‘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 be deemed guilty of bigamy.’ Section 29 provides: ‘It shall not be necessary to prove either of the marriages by the register or certificate thereof or other record evidence; but the same may be proved by such evidence as is admissible to prove a marriage in other cases.’ As has been seen, the charge in the indictment, in substance, was that John T. Hiler, on the 20th day of September, 1893, did marry one Lizzie Myers, and her, the said Lizzie Myers, then and there had for his wife, and the said John T. Hiler afterwards, to wit, on the 21st day of February, 1894, in the county of McLean, and state of Illinois, feloniously and unlawfully did marry one Grace Washburn, and to her, the said Grace Washburn, was then and there married; the said Lizzie Myers, his former wife, being then alive. It appears from the evidence that the defendant was a resident of Grand Haven, Mich. He composed music, played on the piano, and was a good singer. He attended county fairs, where he sold music. He seems to have been married at one time to Mrs. Jennie Graham, and obtained a divorce from her on April 14, 1893. On Sunday, September 10, 1893, the defendant was at Appleton, Wis., stopping at the Sherman House. After dinner he went into the parlor, and met Lizzie Myers and Miss Stillman. He sang, and played on the piano, and then suggested a walk. Another young man joined the party, and the four went to the park. The defendant and Lizzie Myers walked together. They remained at the park during the afternoon, and returned to the hotel in the evening for supper. The defendant testified that on Sunday afternoon he and Miss Myers talked matters over. He talked about marrying her. On cross-examination, in reply to questions asked, he said: ‘Did you ask her that afternoon?’ ‘I asked her if she would keep company with me.’ ‘What did she say?’ ‘She said she was going with a gentleman by the name of Bissell.’ ‘Did you say then you would marry her?’ ‘It was pointing in that way.’ ‘Did you say that?’ ‘Yes, sir.’ ‘She said, ‘All right’?' ‘Yes, sir.’ ‘That was on Sunday afternoon?’ ‘Yes, sir.’ It also appears from the evidence of the defendant that on Sunday afternoon he arranged with Miss Myers to go with him the next day to Hortonville. On cross-examination he further testified: ‘The next day I went to Stillman's, and took her to Hortonville. She introduced me as her husband. As we went to Hortonville, we talked over matters. After we arrived at Hortonville, we talked about her introducing me as her husband. I didn't object, but said that would be all right. She is as much to blame as I am, and she did introduce me as her husband, and I agreed to it. We occupied the same bed that night. We went back to Appleton, and staid there two nights. At Stillman's, there she introduced me as her husband, and I said, ‘We are married.’ We went from there to Oshkosh. I telegraphed for her to come down there and help me, on the 18th. She came the 19th. I was there until the 22d. She left on the morning of the 22d. I went to Sheboygan. I was there three days at the fair, and she helped me. I went to Milwaukee. Was there two weeks, and from there we went to Chicago. I introduced her as my wife from place to place, and occupied the same bed. We went from there to Mrs. Carle's, at Chicago, and introduced her as my wife, and I introduced her to the visitors who came in to see her, and we occupied the same room and the same bed. When I was at Mrs. Carle's, I slept with Lizzie always,...