Magee v. People

• Decision Date: 12 April 1926
• Docket Number: 11298.
• Citation: 79 Colo. 328,245 P. 708
• Parties: MAGEE v. PEOPLE
• Court: Colorado Supreme Court

245 P. 708

79 Colo. 328

MAGEE v. PEOPLE

No. 11298.

Supreme Court of Colorado, En Banc.

April 12, 1926

Rehearing Denied May 3, 1926.

Error to District Court, Jefferson County; S.W. Johnson, Judge.

Clyde L. Magee was convicted of bigamy, and brings error.

Affirmed.

T. E. McIntyre and Charles Vincent Mullen, both of Denver, for plaintiff in error.

Wm. L Boatright, Atty. Gen., and Jean S. Breitenstein, Asst. Atty Gen., for the People.

CAMPBELL J.

The defendant was convicted of the crime of bigamy, and sentenced to the penitentiary. Section 6835, C. L. 1921, reads:

'Bigamy consists in the having of two wives or two husbands at one and the same time, knowing that the former husband or wife is still alive. If any person or persons within this state being married, or who shall hereafter marry, do at any time marry any person or persons, the former husband or wife being alive, the person so offending shall on conviction thereof be punished,' etc.

This information follows the exact language of the second sentence above quoted. There is no averment therein that the accused at the time of his second marriage knew that his former wife was still alive. The record shows the defendant's formal arraignment, his plea of not guilty, and the order setting the case for trial, defendant's objection to introduction of any evidence by the prosecution, the verdict, the orders denying a motion to set aside the verdict and for new trial, the overruling of a motion in arrest of judgment, the judgment and sentence, and exceptions thereto. There is no bill of exceptions. No evidence, therefore, appears in the record, and there is nothing in the latter to inform this court what particular defense was interposed or what the evidence was.

The only error assigned is to the rullings of the court upon the objection by the defendant, made by various motions and an oral demurrer, which is that the information is fatally defective, in that there is no averment therein that the defendant, at the time of his second marriage, knew that his former wife was then alive. This court has repeatedly announced, as a general rule, that an indictment or information which describes the offense in the language of the statute, or so clearly that what is charged may be readily understood by a jury, is sufficient. If any essential ingredient of an offense is omitted, advantage thereof may be taken at any stage of the proceedings even by motion in arrest of judgment after sentence has been pronounced. Tracy v. People, 176 P. 280, 65 Colo. 226; People v. Fontuccio, 215 P. 145, 73 Colo. 288; Johnson v. People, 80 P. 133, 33 Colo. 224, 108 Am.St.Rep. 85.

The general rule is that, where the scienter or knowledge of particular facts is by the statute expressly or impliedly made an essential ingredient of the offense, it must always be expressly alleged, but, where not an essential ingredient it need not be averred. If only the naked question of the sufficiency of this information was before us for decision, irrespective of the particular defense made, and without reference to the facts produced at the trial, it might be, under the authorities, that, since the statutory definition of bigamy includes the element of knowledge, the objection of the defendant to the information on that ground would have to be sustained. We do not definitely so decide, however, in view of the fact that the information follows the exact language of the second sentence of the bigamy act, which indicates that the General Assembly, in not including therein the element of knowledge by the accused, in effect said to the prosecution that, where a defense is interposed, as may have been in the case before us, that the accused supposed his former spouse was not living at the time of the second marriage because she had been continuously absent from him for a period of more than five years when he entered into the second marriage,...