Mcqueen v. State
| Decision Date | 25 October 1926 |
| Docket Number | 25845 |
| Court | Mississippi Supreme Court |
| Parties | MCQUEEN v. STATE. [*] |
1. BIGAMY. In prosecution for bigamy, proof by state of ceremonial marriage by person introduced by defendant as minister at parsonage or home of such alleged preacher was sufficient, without proof that minister was ordained or authorized to perform ceremony (Code 1906, section 1051 (Hemingway's Code, section 779]).
Where in case of bigamy, the state proved a ceremonial marriage performed by a person introduced as a minister of the gospel by the defendant, the marriage ceremony being performed at the parsonage or home of such alleged preacher in the presence of witnesses, this is sufficient proof of a valid marriage, and the state does not have to show that the minister was, in fact, ordained by his church or authorized by his church to perform such marriage.
2. BIGAMY. In prosecution for bigamy, corroborating proof of ceremonial marriage under law of Louisiana by showing cohabitation and birth of children is not error (Code 1906 rection 1051 [Hemingway's Code, section 779]).
Where a ceremonial marriage is proved under the law of Louisiana, it is nor error to corroborate such proof by showing the living together as man and wife and birth of children to such persons occupying such relation.
3. CRIMINAL LAW. In prosecution for bigamy, calling defendant's wife from among spectators in courtroom in presence and hearing of jury for week and having her name listed among state's witnesses held not cause for reversal (Code 1906, section 1051 [Hemingway's Code, section 779]).
It is not reversible error for the state's prosecuting attorney to call the wife of the defendant from among the spectators in the courtroom in the presence and hearing of the jury for the week and have her name listed among those who are witnesses for the state. While this practice is not to be commended, it will not cause a reversal of the case in the absence of other error.
4. INDICTMENT AND INFORMATION. Defect in indictment, appearing on face thereof, must be taken advantage of by demurrer and not otherwise (Code 1906, section 1426 [Hemingway's Code section 1182]).
Defect in an indictment, appearing on the face thereof, must be taken advantage of by demurrer and not otherwise. Hemingway's Code, section 1182 (section 1426, Code of 1906).
5. INDICTMENT AND INFORMATION. Indictment held to sufficiently negative statutory exceptions (Code 1906, sections 1051, 1052 [Hemingway's Code, sections 779, 780]).
Conceding for the purpose of this decision, but without so deciding that it is necessary to negative the exceptions contained in section 780, Hemingway's Code (section 1052, Code of 1906), referred to in section 779, Hemingway's Code (section 1051, Code of 1906), an indictment which charges that the defendant in said county and state on the ----- day of April, 1924, the said defendant being then and there a married man, having at the time a lawful, living wife; namely, M., whose maiden name was B., the said defendant did then and there, willfully, unlawfully, and feloniously marry again and take for his wife one Mrs. C. M., whose maiden name was C. B., who was a woman other than and different from the said M., against the peace, etc., it is a sufficient negation of the exceptions referred to in the case before the court.
APPEAL from circuit court of Pearl River county, HON. J. Q. LANGSTON, Judge.
William McQueen was convicted of bigamy, and he appeals. Affirmed.
Judgment affirmed.
William A. Shipman, for appellant.
I. The court below erred in admitting improper evidence on the part of the state, over the objection of the appellant. Over the objection of the appellant, the state was permitted to prove by the witness William Blanco the birth of children to Mrs. Louise McQueen, their names, their ages, and to identify them in the presence of the jury. The indictment, if it charged any offense, charged the crime of bigamy. There was no issue between the state and the accused relative to the birth or existence of children; the indictment does not affirm such as a fact, nor could the plea of the defendant place in issue such a fact. It was clearly prejudicial to the appellant's case to lug in this irrelevant matter, thereby specifically directing the jury's attention to a fact not in issue.
II. The court below erred in permitting, over the objection of the appellant, the state's attorney to call the wife of the appellant from among the spectators in the courtroom specifically by name, in the presence and hearing of the jurors for the week; and in including her name among those of the witnesses for the state, she being incompetent to testify against the appellant. True, the court sustained the objection to her taking the oath, but the damage was already done and it was irreparable. In the very moment following, counsel for the defendant renewed the objection to Mrs. McQueen's sitting with the district attorney and parading in front of the jury as being prejudicial to the defendant and being calculated to arouse hostility in the minds of the jury toward the defendant. This objection was overruled. Finklea v. State, 94 Miss. 777, 48 So. 1.
III. The court below erred in refusing the peremptory instruction requested by appellant at the close of the testimony. We can find no competent and credible evidence or clear proof that the alleged marriage between the appellant and the alleged wife ever occurred. The only witness to testify who professed to know of the marriage is William Blanco. He says that the alleged marriage took place in 1913 on January 29, at the parsonage of the Salem Evangelical Church, a Presbyterian church; that he and three other persons, whose names he mentioned, were present and no one else except the preacher and contracting parties; that defendant and his sister lived together as man and wife; that two children were born to them; that the witness had, about four years prior to the time of the trial, seen the defendant in New Orleans; and that no divorce had ever been granted between them.
While this witness Blanco was still on the stand and at the close of his redirect examination by the district attorney, the latter, with a tremendous flourish, without permitting defendant's counsel to examine him or give him an opportunity to inspect it, announced, "I now offer a certificate signed by the recorder of marriages, certifying to the marriage between William McQueen and Louise Blanco." Of course, the alleged document was inadmissible and the state's attorney without a struggle admitted as much; but he had got to the jury with it all the same by wrongfully stating its contents before giving defendant's counsel a chance to examine it and make his objection; neither did he pretend to have it identified by any witness, had that been necessary; nor was the court given any opportunity to inspect and pass on the admissibility vel non of the alleged marriage certificate. We were compelled to object and the jury, of course, jumped to the conclusion that the defendant feared to have it admitted, thus doing the defendant another irreparable injury.
There is nothing in the testimony of any other witness to prove a ceremonial marriage between the defendant and the alleged wife, Louise McQueen. The law of the state of Louisiana does not recognize common-law marriages. It was error, therefore, for the court to refuse the defendant's request for a peremptory charge.
IV. The indictment is null and void since it did not by proper averment negative the exceptions contained in section 1051, Code of 1906, and, therefore, charged no offense under the law. This proposition is no longer an open question in this state. Chapter 211, Laws of 1922 was amended by chapter 245, Acts of 1924; but this amendment (section 4, Acts of 1924) does not purport to abrogate the general rule or to establish a new system, applicable generally to pleading in indictments, but is confined specifically to distilling liquor. The rule announced by this court heretofore, stands unmodified by the amendment. State v. Speaks, 96 So. 176, chapter 211, Laws of 1922.
It is equally true that under the statute (section 1051, Code of 1906) that it is unlawful for every person having a living wife or husband to marry again if such person shall come under the exceptions contained in the statute. See, also, Dawsey v. State, 100 So. 526.
It is confidentially submitted that under the decisions of this court and the great weight of authority, the indictment fails to charge any offense under the law and, therefore, this case should be reversed. It is true that in the Speaks case, supra, a demurrer was interposed to the indictment, but it was not necessary; for in the Dawsey case, supra, there was none; the defendant was not so much as represented by counsel. No objection was made in the trial court to the sufficiency vel non of the indictment. But failure to object to the sufficiency in the trial court is immaterial, for the very good and sufficient reason that the alleged indictment charges no offense under the law; and an invalid or worthless indictment cannot be validated by mere failure of the accused to object in the court below. The trial court was without jurisdiction to try the appellant and sentence him to punishment under the defective and void indictment.
Exception may be made first in the appellate court where the trial court was without jurisdiction. Section 4936, Code of 1906 (section 3212, Hemingway's Code). See, also, Hardy v State, 96 Miss. 844, 51 So. 460; Rogers v. Hattiesburg, 99 Miss. 639, 55 So. 481; Cawthon v. State, 57 So. 244; Xydias v. Pittman, 83 So. 620; Ex parte Phillips, 57 Miss. 357; Spivey v....
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