Niece v. Territory
| Decision Date | 07 February 1900 |
| Citation | 60 P. 300,9 Okla. 535,1900 OK 15 |
| Parties | NIECE v. TERRITORY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Under the provisions of section 4551 of the Statutes of 1893 it is unlawful for either party to a divorce suit to marry any other person within six months from the date of the decree of divorcement, and every person marrying contrary to the provisions of this section is guilty of bigamy.
2. An indictment for bigamy under section 4551 is insufficient where it fails to negative the fact that the alleged bigamous wife was a person other than the wife of the defendant at the time of the second marriage.
3. An indictment for bigamy under the provisions of section 2181 of the Statutes of 1893 must allege that the defendant had a former wife still living at the date of the second marriage but under the provisions of section 4551 it is not necessary for the indictment to contain such an allegation.
Error from district court, Logan county; before Chief Justice John H. Burford.
A. P Niece was convicted of bigamy, and brings error. Reversed.
H. R Thurston and D. T. Jarvis, for plaintiff in error.
Harper S. Cunningham, Atty. Gen., for the Territory.
The appellant, A. P. Niece, was indicted, tried, and convicted, under the provisions of section 4551 of the Statutes of 1893, for the crime of bigamy, in the district court of Logan county, and was sentenced to serve a term of one year in the territorial penitentiary at Lansing, Kan.
The first error assigned and urged by counsel for the plaintiff in error is that the indictment does not state facts sufficient to constitute a public offense under the laws of this territory. This question was raised by objecting to the introduction of testimony on behalf of the territory upon the trial, and by a motion in arrest of judgment. The objection to the introduction of testimony, as wel as the motion in arrest of judgment, were overruled by the court, and exception saved by the defendant. The indictment in this case reads as follows (omitting caption): "The grand jurors, duly summoned, chosen, impaneled, sworn, and charged at the November term aforesaid of said district court within and for the body of Logan county, Oklahoma, to inquire into and true presentment make of all public offenses against the territory of Oklahoma committed or triable within the county of Logan in said territory, in the name and by the authority of the territory of Oklahoma, upon their oaths present that one A. P. Niece, late of the county of Logan, on the 13th day of February, in the year one thousand eight hundred and ninety-nine, in the said county of Logan then and there being, did, on said thirteenth day of February, A. D. one thousand eight hundred and ninety-nine, institute in the district court of the county of Logan, which court then and there had jurisdiction in the premises, an action against one Anne L. Niece, who was then and there the lawful wife of the said A. P. Niece, by which said action the said A. P. Niece then and there sought to procure a decree of divorcement dissolving and setting aside the bonds of matrimony then existing between the said A. P. Niece and the said Anna L. Niece; and that afterwards, to wit, on the twenty-eighth day of March, A. D. one thousand eight hundred and ninety-nine, a decree of divorcement was duly rendered in said action by said district court of Logan county, so instituted as aforesaid by said A. P. Niece against said Anna L. Niece, which said decree was dated on the twenty-eighth day of March, A. D. one thousand eight hundred and ninety-nine, by which said decree of divorcement the bonds of matrimony theretofore existing between said A. P. Niece and Anna L. Niece were annulled and set aside; and that afterwards, to wit, on the thirteenth day of May, A. D. one thousand eight hundred and ninety-nine, and in the said county of Logan, and within six months from the date of the decree of divorcement aforesaid, the said A. P. Niece, then and there being, did then and there unlawfully, willfully, and feloniously marry and take to wife one N. J. Overman, and to her, the said N. J. Overman, was then and there married, within six months from the date of the decree of divorcement as aforesaid,--contrary to the statute in such case made and provided, and against the peace and dignity of the territory of Oklahoma." This indictment was drawn under the provisions of section 4551 of the Statutes of 1893, which reads as follows: It will be observed that the indictment charges that "said A. P. Niece, then and there being, did then and there unlawfully, willfully, and feloniously marry and take to wife one N. J. Overman, and to her, the said N. J. Overman, was then and there married, within six months from the date of the decree of divorcement." The section of the statute under which said indictment was drawn expressly provides that "it shall be unlawful for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement." Hence it is obvious that the words "to marry any other person" are a material averment of the indictment. The indictment should have negatived the fact that the said N. J. Overman was not the former wife of the defendant.
In U.S. v. Cook, 17 Wall. 168, 21 L.Ed. 538, it was held that offenses created by statute, as well as offenses at common law, must be accurately and clearly described in an indictment; and if they cannot be, in any case, without an allegation that the accused is not within an exception contained in the statute defining the offense, it is clear that no indictment founded upon the statute can be a...
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