LeSeuer v. State
| Citation | 95 N.E. 239,176 Ind. 448 |
| Decision Date | 23 May 1911 |
| Docket Number | No. 21,755.,21,755. |
| Parties | LESEUER v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Pike County; John L. Bretz, Judge.
James E. Leseuer was convicted of bigamy, and he appeals. Affirmed.Lindsey & Bock and J. L. Sumner, for appellant. Thomas M. Honan, Harry W. Carpenter, Oscar R. Luhring, Wm. B. Le Masters, Durre & Curry, Edw. M. White, James E. McCullough, and Thos. H. Branaman, for the State.
Appellant was indicted in Vanderburgh county, from which the venue was changed to Pike county, where he was convicted and sentenced for bigamy.
The first alleged error assigned is in sustaining a demurrer to his plea in abatement. The substance of that plea was that the defendant is now, and has been continuously for the past five years, a resident of the state of Missouri, and never was a resident of the state of Indiana; that, after his marriage to the prosecuting witness, she filed an affidavit in the city court of Evansville, Vanderburgh county, Ind., charging him with bigamy, procured a warrant for his arrest, and he was arrested in the city of St. Louis, Mo., and the officer from the city court of Evansville presented this warrant to him, and demanded that he return to the state of Indiana to answer the charge, and that, in ignorance of his rights and believing the proceeding legal, he returned to the city of Evansville with the officer; that he was bound over to the grand jury, and, pending his being in jail, sued out a writ of habeas corpus, but, before the case could be heard, he was indicted by the grand jury of Vanderburgh county.
The plea presents the fact of the city judge of Evansville being the attorney of the prosecuting witness to procure an annulment of the marriage, and as having prepared and issued the warrant for his arrest, and having appointed a special judge, and then presented the case before the special judge by whom he was bound over to the grand jury, and upon his request and the request of the prosecuting attorney procured the indictment of appellant without sufficient evidence to warrant an indictment.
[1] This plea is based upon alleged fraud of these officers in procuring his return, owing to his lack of knowledge that he was not required to return in obedience to the warrant. It is manifest that these facts, if true, could not abate the indictment. This was an action by the state, and he had come voluntarily within its jurisdiction.
[2] His allegation that the indictment was returned upon insufficient evidence cannot be interposed to abate the indictment. State v. Comer (1902) 157 Ind. 611, 62 N. E. 452, and cases cited; Stewart v. State, 24 Ind. 142;Creek v. State, 24 Ind. 151; State v. Fasset, 16 Conn. 457; State v. Fowler, 52 Iowa, 103, 2 N. W. 983.
If he is guilty of the offense of bigamy, it was an offense committed in Indiana, and against the state of Indiana. The plea alleged that he was not a resident or citizen of the state of Indiana. That he could not therefore avail himself of the laws of this state upon the subject of extradition of fugitives from justice, and we are not informed as to what the laws of Missouri were upon the subject, or whether there were any applicable to the subject as applied to a crime alleged to have been committed in this state. But, assuming that there were statutes of the state of Missouri to which he might have appealed, his pleading shows that he returned to the state of Indiana voluntarily, but under a misapprehension of his rights, if he had any, to be heard in Missouri, and from his ignorance of the law.
It is urged that the method employed to obtain possession of his person was against public policy, and that it is against public policy that one who is a city judge shall practice law, and that the facts alleged show a conspiracy and an unlawful act in procuring his return. Whether the practice of law by city judges should or should not be permitted is a subject for legislative intervention, and is not the concern of the courts. Whether the alleged acts by which his return was procured were wrongful upon the part of the participants, or would authorize an action for damages, they clearly cannot be claimed to abate the indictment, and the demurrer was properly sustained.
[3] The next alleged error is in overruling the motion for a new trial, and primarily that the verdict is not sustained by sufficient evidence. The evidence shows: That appellant was married in Carroll county, Mo., on May 1, 1899, to a Miss Wallace; that he was then upwards of 21 years of age, and she upwards of 18 years of age; that they lived together until November, 1906. He was 27 years of age at the time of the trial. By the first marriage he had one child, and his first wife procured a divorce from him. He was again married July 10, 1909, to Rowena Rogers in Omaha, Neb., and left her after a few days. That on February 26, 1910, he was married to Jeanne H. Kelley, in Vanderburgh county, Ind. His verified application for a marriage license stated that this was his first marriage. Jeanne H. Kelley was 21 years of age, and this was her first marriage. He stated to the minister who performed the marriage ceremony that he had never been married. He stated to a policeman that he had received a letter from Rowena Rogers some two weeks before his marriage to Miss Kelley that she had obtained a divorce, but he had destroyed the letter. He first met Miss Kelley February 3, 1910, and they were married on February 26, 1910. They were employed in the same office, she as a stenographer, and he as a cartoonist. He represented to the prosecuting witness that he was a bachelor. Soon after the marriage they went to St. Louis, and she returned to her father March 28, 1910, and instituted an action for a divorce April 28, 1910. He claimed to have received a letter from his last wife ten days or two weeks before he married Miss Kelley in which she stated that she had gotten a divorce. His reliance and defense is based upon that claim of fact. He claims to have written her inquiring whether she had gotten a divorce, and that he believed what she said, and made no further inquiry. There is some evidence by one party as to having seen a letter such as appellee claimed to have received, but it was of such character that the jury may well have disbelieved it. It then resolves itself into this proposition: Supposing that he received such a letter, was he justified in relying upon it? In Squire v. State, 46 Ind. 459, an instruction was asked by the defendant “that, if the jury believe from all the evidence in the case that the defendant married the second time in the honest belief that his former wife had been divorced from him, they should find him not guilty,” and it was held not error to refuse it, and it was also held that, if it had been asked so to do, the court should have charged the jury that if they believed from the evidence that the defendant had been informed that his wife had been divorced, and that he had used due care and made due inquiry to ascertain the truth, and, had, considering all the circumstances, reason to believe, and did believe, at the time of his second marriage that his former wife had been divorced from him, they should find him not guilty. In that case the defendant had been separated from the former wife two years, and had received letters from his parents and his brothers informing him that his wife had procured a divorce from him, and, relying upon that information, had remarried. Appellant's claim is not so well founded in this case, as was the defendant's claim in that case.
In this case appellant admits that the relations between himself and the last wife were strained, and that he had seen her as late as November, 1909, and knew she had not then procured a divorce. He knew that she lived in Douglass county and in the city of Omaha, Neb., where she had relatives whom he knew, as he did the places of residence of other relatives whom he knew, but he made no inquiry whatever except as he claimed of his wife. This information he claimed to have received within ten days or two weeks of the marriage for which he was prosecuted. It is not sufficient that he should merely have had a belief upon the subject. He must show such care and inquiry as would justify the belief under all the evidence and circumstances in evidence, and whether he did so was a question for the jury.
[4] It is next contended that the evidence is not sufficient for the reason that it was not shown that appellant had not been divorced from the former wife. This proposition has been held adversely to appellant. Fletcher v. State (1907) 169 Ind. 77, 81 N. E. 1083, 124 Am. St. Rep. 219. The presumptions which obtain in civil cases with respect to marriage entered into according to the forms of law that there is no impediment to such marriage, where the rights or the happiness of the innocent party to the supposed marriage or the legitimacy of offspring of the marriage is involved in collateral proceedings, find no place in a prosecution for bigamy. Fletcher v. State, supra.
[5] Before the commencement of the argument to the jury, appellant requested the court to give all instructions to the jury in writing. This was not done, and the court instructed the jury orally, and the instructions were taken in shorthand by the court reporter. If the case stood in this condition of the record, this judgment would have to be reversed, as it is a positive right of a defendant. Burns 1908, § 2136, subd. 5; Littel v. State, 133 Ind. 577, 33 N. E. 417;Stephenson v. State, 110 Ind. 358, 11 N. E. 360, 59 Am. Rep. 216;Smurr v. State, 88 Ind. 504.
[6] But, after the jury had retired and been some four hours in deliberation, they requested to be reinstructed. They were brought in and by consent of appellant the instructions were read by the reporter. The taking down by the reporter of the oral instructions did not constitute them written instructions....
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