State v. Edmiston

• Decision Date: 26 February 1901
• Citation: 160 Mo. 500,61 S.W. 193
• Parties: STATE v. EDMISTON.
• Court: Missouri Supreme Court

61 S.W. 193

160 Mo. 500

STATE v. EDMISTON.

Supreme Court of Missouri, Division No. 2.

February 26, 1901.

BIGAMY—INDICTMENT—PROOF—INSTRUCTIONS —HARMLESS ERROR.

Rev. St. 1899, § 3140, provides that the record books of marriages, and certified copies thereof, shall be evidence in all courts. Defendant was indicted for marrying a second wife when he had a wife living by the name of S. E., and a certified copy of a marriage between defendant and S. E. was read in evidence, and undisputed. The court charged that, if the jury believed that defendant married R. B. when he had a wife living at the time, they should find defendant guilty. Held, that the error in the charge, in that it did not require the jury to find that the name of defendant's first wife was S. E., was rendered harmless by the undisputed proof of that fact.

Appeal from circuit court, Howell county; W. N. Evans, Judge.

E. M. Edmiston was convicted of bigamy, and he appeals. Affirmed.

Robert Tyree and W. J. Orr, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

SHERWOOD, P. J.

Bigamy, the charge; conviction, the result; punishment, two years in the penitentiary,—the verdict, sentence, and judgment.

The indictment charged the name of the first wife to be Sarah Edmiston, and is bottomed on section 2167, Rev. St. 1899. Section 3140, Id., provides that "the record books of marriages to be kept by the respective recorders, in pursuance of the provisions of law, and copies thereof, certified by the recorder under his official seal, shall be evidence in all courts." This section authorized a certified copy of the marriage of defendant to Sarah Wallace, in Vernon county Mo., to be read in evidence, and such certified copy of the license and marriage certificate established the fact that the name of the first wife was "Sarah Edmiston."

The court instructed the jury: "If you believe and find from all the facts and circumstances in evidence, beyond a reasonable doubt, that the defendant, in Howell county, Missouri, on or about the 2d day of June, 1900, did marry Rosa Buchanan, when he (the defendant) was a married man and having a wife living at the time, then you should find the defendant guilty, and assess his punishment at imprisonment in the penitentiary not less than two or more than five years, or in county jail not less than six months, or by a fine of not less than five hundred dollars, or by both a fine of not less than one hundred dollars...