State v. Caulder

• Decision Date: 05 June 1924
• Docket Number: No. 25339.,25339.
• Citation: 262 S.W. 1023
• Parties: STATE v. CAULDER
• Court: Missouri Supreme Court

262 S.W. 1023

STATE v. CAULDER

No. 25339.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

John Caulder was convicted of marrying the wife of another and appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.

HIGBEE, C.

The information charges that the defendant, on June 12, 1922, feloniously did marry and take to wife one Hattie Van Antwerp, who was then and there the lawful wife of W. Van Antwerp, who was then living. The defendant was found guilty on August 2, 1922, and his punishment assessed by the jury at imprisonment in the penitentiary. He was sentenced accordingly on August 5, 1922, from which sentence he appealed. The record on that appeal showing that the motion for new trial was filed after sentence was pronounced, only the record proper was here for review. It not appearing that the defendant was granted allocution as required by section 4057, R. S. 1919, the judgment was reversed and the cause remanded, with directions to have defendant brought into court for allocution and judgment, as provided by said section. (Mo. Sup.) 256 S. W. 1063. Thereafter, on February 5, 1924, the trial court, on motion of the defendant, made an order, nunc pro tune, correcting its record so as to show that the motion for new trial was in fact filed before sentence was pronounced, and on the same day the court granted the defendant allocution, and sentenced him in accordance with the verdict of the jury. From this judgment the defendant appealed.

Hattie Van Antwerp testified that she was married to C. W. Van Antwerp on September 19, 1918, at Cedar Rapids, Iowa; that they moved to Springfield, Mo., in the summer of 1921; that they had two children by their marriage, aged one and two years respectively; that she met defendant at her sister's home in Springfield about the 1st day of June, 1922; that she told him she was married and had two children and two step children; the next day she and defendant went to a picture show; that `he asked her to leave with him; she told him she was married and had a home; he said that did not hurt; that he went home with her; that she told him they were liable to meet her husband; that she finally agreed to and did go to the house of defendant's mother in Howell county, and stayed there from Saturday night until Monday morning, when she and the defendant, on June 12, 1922, were married at West Plains, in Judge Halstead's office. On cross-examination she admitted that she told Judge Halstead, the sheriff, and several others, that she was single, and that the babies were her sister's children, but that the defendant had told her to do so, so they would think she was single, and that she was married to the defendant as Hattie Chapman, which was her maiden name.

C. W. Van Antwerp testified that he was married to Hattie Van Antwerp in September, 1918, at Cedar Rapids, Iowa, and moved to Springfield in the summer of 1921, where they had lived ever since till about June 10, 1922; that they had two children; and that he was a painter by trade.

George Halstead, a justice of the peace, testified that he married John Caulder and Hattie Van Antwerp or Hattie Chapman at West Plains. The state read in evidence the record of a marriage license, issued by the recorder of deeds of Howell county, on June 12, 1922, for the marriage of John Caulder and Miss Hattie Chapman. A blank space appears in the record after the license, but no return appears to have been made thereon. Several witnesses for the defendant testified they had heard Hattie Van Antwerp say she was unmarried and that the children belonged to her sister. The defendant testified he was 32 years of age; that he lived in West Plains; that Mrs. Van Antwerp was introduced to him as Miss Hattie Chapman; that she told him she was single, and that the two children belonged to her younger sister; that she told him after their marriage that she was married. "Q. Did you know at the time she married you, from any other source, that she was married, had anybody else told you she was married? A. No, sir." On cross-examination the defendant testified he had been convicted twice and sentenced to the penitentiary.

1. At the trial the defendant objected to the admission of the evidence of Hattie. Van Antwerp and her husband, that they were married in Iowa in September, 1918, for the reason that it was not the best evidence. This is assigned as error in the motion for new trial "without accounting for absence of the best evidence."

The burden was on the state to prove that Hattie Van Antwerp was a married woman at the time of the alleged bigamous marriage. 7 C. J....