Lesueur v. The State
| Decision Date | 23 May 1911 |
| Docket Number | 21,755 |
| Citation | 95 N.E. 239,176 Ind. 448 |
| Parties | Lesueur v. The State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied and Opinion Modified November 15, 1911.
From Pike Circuit Court; John L. Bretz, Judge.
Prosecution by The State of Indiana against James E. Lesueur. From a judgment of conviction, defendant appeals.
Affirmed.
Lindsey & Bock and J. L. Sumner, for appellant.
Thomas M. Honan, Attorney-General, H. W. Carpenter, O. R. Luhring W. B. Le Masters, Durre & Curry, E. M. White, J. E McCullough and Thos. H. Branaman, for the State.
Appellant was indicted in Vanderburgh county, from which a change of venue was taken 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 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, Indiana, charging him with bigamy, procured a warrant for his arrest, and he was arrested in the city of St. Louis, Missouri, 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, while 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 that the judge of the Evansville city court was the attorney for the prosecuting witness to procure an annulment of the marriage; that he prepared and issued the warrant for the arrest of appellant, appointed a special judge to hear the case, and then presented the case before the special judge, by whom appellant was bound over to the grand jury; that upon the request of said judge and of the prosecuting attorney the indictment of appellant was procured without sufficient evidence to warrant it. This plea is based upon alleged fraud of these officers in procuring the return of appellant, 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 appellant had come voluntarily within its jurisdiction. 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 (1865), 24 Ind. 142; Creek v. State (1865), 24 Ind. 151; State v. Fasset (1844), 16 Conn. 457; State v. Fowler (1879), 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. 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, though under a misapprehension of his rights, if he had any, to be heard in Missouri, and because of 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. The demurrer was properly sustained.
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, Missouri, on May 1, 1899, to a Miss Wallace; that he was then about twenty-one years of age, and she was about eighteen years of age; that they lived together until November, 1906; that he was twenty-seven years of age at the time of the trial; that by the first marriage he had one child; that his first wife procured a divorce from him; that he was again married on July 10, 1909, to Rowena Rogers in Omaha, Nebraska, and left her after a few days; that on February 26, 1910, he was married to Jeanne H. Kelley, in Vanderburgh county, Indiana; that his verified application for a marriage license stated that this was his first marriage, that Jeanne H. Kelley was twenty-one years of age, and that this was her first marriage; that he stated to the minister who performed the marriage ceremony that he had never been married; that he first met Jeanne H. Kelley February 3, 1910, and they were married on February 26, 1910; that they were employed in the same office, she as a stenographer, and he as a cartoonist; that he represented to the prosecuting witness that he was a bachelor; that soon after the marriage they went to St. Louis; that she returned to her father on March 28, 1910, and instituted an action for a divorce April 28, 1910; that he claimed to have received a letter from Rowena Rogers ten days or two weeks before he married Jeanne H. Kelley, in which she stated that she had gotten a divorce, and his reliance and defense is based upon that claim of fact. He claims to have written to her inquiring whether she had gotten a divorce, and that he believed what she said and made no further inquiry. One person testified to having seen a letter such as appellee claimed to have received, but the evidence was of such a character that the jury may well have disbelieved it. It then resolves itself into this proposition: Granting that he received such a letter, was he justified in relying upon it? In the case of Squire v. State (1874), 46 Ind. 459, an instruction asked by the defendant stated "that if the jury believe from all the evidence in the case that defendant married the second time in the honest belief that his former wife had been divorced from him, it should find him not guilty," and it was held not error to refuse it; and it was also held that if the court had been asked so to do, it should have charged the jury that if it believed from the evidence that 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, considering the circumstances, and had reason to believe, and did believe at the time of his second marriage, that his former wife had been divorced from him, it should find him not guilty. In that case 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 defendant's claim in that case.
In this case appellant admits that the relations between himself and his 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 Omaha, Nebraska, where she had relatives, whom he knew. He also knew where other relatives lived, but he made no inquiry whatever except of his wife. He claims to have received the information 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.
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, 124 Am. St. 219, 81 N.E. 1083.
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.
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 upon this condition of the record, the judgment would have to be reversed, as a positive right of defendant would have been denied him. § 2136 subd. 5, Burns 1908, Acts 1905 p. 584, § 260; Littell v. State (1893), 133 Ind. 577, 33 N.E. 417; Stephenson v. State (1887), 110 Ind. 358, 59 Am. Rep. 216, 11 N.E. 360; Smurr v. State (1883), 88 Ind. 504. But after...
To continue reading
Request your trial