State v. Gonce

Decision Date31 October 1883
Citation79 Mo. 600
PartiesTHE STATE v. GONCE, Appellant.
CourtMissouri Supreme Court

Appeal from Stone Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

Davis & Heffernan for appellant.

D. H. McIntyre, Attorney General, for the State.

EWING, C.

In 1879 the appellant was indicted for bigamy in Stone county, was convicted and sentenced to imprisonment in the penitentiary for two years. He brings the case here and asks its reversal: 1st, Because the indictment is insufficient. 2nd, Because the court admitted incompetent evidence. 3rd. Because the court gave and refused improper instructions.

1. BIGAMY: pleading.

I. The indictment is sufficient. It charges the offense specifically in the language of the statute. It contains all the elements necessary to constitute a valid indictment for bigamy. “The grand jurors for the State of Missouri, summoned from the body of Stone county, empanelled, charged and sworn, upon their oaths present that Abraham R. Gonce, late of the county aforesaid, on the 10th day of April, 1877, at the county of Stone aforesaid, did unlawfully and feloniously, marry and take to wife, one Martha Ann Keithley, and to her, the said Martha Ann Keithley, was then and there married; he, the said Abraham R. Gonce, then and there having a wife living, to-wit: Mary A. Gonce; against the peace and dignity of the State.” 2 Arch. Crim. Plead. and Prac., p. 1813, Pomeroy's notes; Commonwealth v. Jennings, 121 Mass. 47; s. c., 23 Am. Rep. 249.

2. ____: evidence.

II. The evidence of the first marriage consisted of living together and holding out to the world the relation of man and wife for years; that defendant called Mary A. Gonce his wife and treated her as such; had a family of children living with them as their children; also tending to prove that the woman had signed and acknowledged deeds as his wife; also records of Christian county showing a petition for divorce by Mary A. Gonce against A. R. Gonce, his answer thereto, and the judgment of the court granting the prayer of the petition in September, 1878. Cargile v. Wood, 63 Mo. 513; 11 Me. 391; State v. McDonald, 25 Mo. 176. The proof of the second marriage was by the minister who solemnized it on the 10th day of April, 1877, and also the record of the marriage certificate.

3. PAROL EVIDENCE.

The defendant offered a copy of a decree of divorce of a Kentucky court dated in 1857, of A. R. Gonce against Mary A. Gonce, which was not certified as the law directs, (R. S. 1879, § 2321,) and was not competent evidence; but it was introduced without objection on the part of the prosecution. In rebuttal thereof the State called various witnesses whose evidence very strongly tended to prove that this pretended record and clerk's certificate were in the handwriting of the defendant. To this evidence the defendant objected. There is no objection to this evidence. Wharton Crim. Ev., (8 Ed.) §§ 552, 553. There was no contradiction here of a record of a court. If a genuine record, its contents cannot be changed or modified by parol. But any evidence is admissible to show, or that tends to show, it is a fraud; that it is in fact not a record but a forgery. Thorn v. Insurance Co., 80 Pa. St. 15; s. c., 21 Am. Rep. 89; Lowry v. McMillan, 8 Pa. St. 164; Wharton Crim. Ev., § 595.

4. REASONABLE DOUBT.

III. The instructions given on the part of the State were substantially correct, and defendant was not injured by them. But the...

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  • The State v. Douglas
    • United States
    • Missouri Supreme Court
    • May 26, 1914
    ... ... instruction as he is to a trial by jury; for if the court may ... direct a jury to convict a defendant, then the constitutional ... right to a trial by jury would amount to little or nothing ... In discussing this point in the case of State v ... Gonce, 79 Mo. 600, Ewing, C., said: ...          "That ... part of the instruction as to a reasonable doubt is usually ... asked and given on the part of the State ... Even though ... it may appear to the court there can be no grounds for a ... reasonable doubt, yet the accused must ... ...
  • Dinkelman v. Hovekamp
    • United States
    • Missouri Supreme Court
    • March 5, 1935
    ...his second marriage. 38 C. J., sec. 109, p. 1336; Pope v. Ry. Co., 175 S.W. 957; Topper v. Perry, 197 Mo. 531, 95 S.W. 203; State v. Gonce, 79 Mo. 600; State McDonald, 25 Mo. 176; Butterfield v. Butterfield, 195 Mo.App. 37, 187 S.W. 295; Imboden v. St. Louis Union Trust Co., 111 Mo.App. 220......
  • State v. Douglas
    • United States
    • Missouri Supreme Court
    • May 26, 1914
    ...then the constitutional right to a trial by jury would amount to little or nothing. In discussing this point in the case of State v. Gonce, 79 Mo. 600, Ewing, J., said: "That part of the instruction as to a reasonable doubt is usually asked and given on the part of the state, * * * even tho......
  • Dinkelman v. Hovekamp
    • United States
    • Missouri Supreme Court
    • March 5, 1935
    ...his second marriage. 38 C.J., sec. 109, p. 1336; Pope v. Ry. Co., 175 S.W. 957; Topper v. Perry, 197 Mo. 531, 95 S.W. 203; State v. Gonce, 79 Mo. 600; State v. McDonald, 25 Mo. 176; Butterfield v. Butterfield, 195 Mo. App. 37, 187 S.W. 295; Imboden v. St. Louis Union Trust Co., 111 Mo. App.......
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