State v. Pinson

• Decision Date: 02 January 1922
• Docket Number: No. 22907.,22907.
• Citation: 291 Mo. 328,236 S.W. 354
• Parties: STATE v. PINSON.
• Court: Missouri Supreme Court

236 S.W. 354

291 Mo. 328

STATE v. PINSON.

No. 22907.

Supreme Court of Missouri, Division No. 2.

January 2, 1922.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

William Pinson was convicted of bigamy, and appeals. Affirmed.

William E. Fish and Roy A. Fish, both of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen. (R. W. Otto, of Washington, Mo., of counsel), for the State.

HIGBEE, P. J.

The appellant was charged on the information of the circuit attorney with the crime of bigamy, in this, that on February 12, 1920, at the city of St. Louis, in the state of Missouri, he unlawfully and feloniously did marry and take to wife one Ethel Daniels, he, the said William Pinson, then and there having a lawful wife living, to wit, Mary Pinson. The jury returned a verdict of guilty, and assessed the defendant's punishment at imprisonment in the penitentiary for 2 years.

Five witnesses testified that they had known the defendant and his wife, most of them intimately, since the year 1909; that during all that time the defendant and Mary Pinson held each other out and cohabited together as husband and wife in the city of St. Louis; that the defendant introduced Mary Pinson as his wife to some, and she introduced him to others, as her husband. Mary Pinson was employed as a pastry cook for 5 or 6 years successively in two different hotels, and during those years she and the defendant occupied the same room and bed, and were known as husband and wife. Samuel A. Mosely, a minister of the gospel, testified that he knew the defendant and Ethel Daniels (who was present in court and identified by the witness); that they were members of his congregation; that he joined them in marriage in his house in the city of St. Louis on February 12, 1920; that they had a marriage license; that he made his return on it; that he was a regularly ordained minister, and was connected with the Tabernic Baptist Church. Officer Meier, of the Metropolitan Police Force, testified that he assisted in the arrest of the defendant on February 27 on the complaint of his first wife; that the defendant said in her presence that he had married Mary Pinson in Atlanta, Ga., about 10 years ago.

"Q. Who did he say he had married? A. Mary Pinson.

"Q. Is that the lady in the first seat? A. Yes, sir; and she wanted to know why he married again, and he told her he did not think she would care."

The state read in evidence, over the defendant's objection, a certified copy of the record of a marriage license issued July 11, 1908, by John R. Wilkinson, ordinary, of Fulton county, Ga., authorizing the marriage of Will Pinson (colored) and Mary Carvield (colored), with the return by J. P. Jackson, minister of the gospel, certifying that they were joined in matrimony by him on July 12, 1908. This record was certified to be a true copy of the marriage license and certificate of marriage aforesaid, purporting to be signed by the ordinary of Fulton county, Ga., and under his Official seal. The state had previously read in evidence the pertinent sections of the statutes of Georgia as to the duties of the ordinary, including the issuance and recording of marriage licenses and the returns thereon.

Ethel Daniels, called by the state, was asked:

"Q. You live with the defendant, Pinson?"

Counsel for the defendant thereupon interrogated the witness as follows:

"Q. You are the woman who was married by the preacher Mosely to this defendant? A. Yes, sir.

"By Mr. Fish: We object, because she is the true and lawful wife of Pinson at this time, and it has not been shown that he had a former wife living.

"By the Court: Overruled, and exceptions saved.

"By Mr. O'Brien: Where does Pinson live? A. I refuse to answer because it might incriminate me."

Mary Pinson, over the objection of the defendant, testified that her maiden name was Mary Carvield. This was all the evidence.

The court gave instructions to the jury in substance as follows:

"(1) If you find from the evidence that the defendant was, on July 12, 1908, in Fulton county, Ga., lawfully married by P. J. Jackson to Mary Pinson, and that said Jackson was then and there a minister of the gospel, and that he performed the ceremony of the marriage as such minister of the gospel, and if you further find from the evidence that afterwards while the marriage relation between defendant and Mary Pinson continued (if you find they were married as above stated), and while said Mary Pinson was living, the defendant was married by S. A. Mosely, a duly ordained minister of the gospel at the city of St. Louis, Mo., on February 12, 1920, to the witness Ethel Daniels, then you should find the defendant guilty, etc.

"(2) Before you can find the defendant guilty of bigamy in this case, you must be satisfied by the evidence beyond a reasonable doubt that the defendant is the same person who was married by P. J. Jackson, a minister of the gospel, at the city of Atlanta, Fulton county, Ga., to Mary Pinson on July 12, 1908, and who was married by S. A. Mosely, a minister of the gospel, to Ethel Daniels, on February 12, 1920, and that said Mary Pinson was then living and the wife of the defendant.

"(2a) That unless you find beyond a reasonable doubt that on July 12, 1908, the defendant was lawfully married in the state of Georgia to Mary Carvield, and that said marriage was performed by a person authorized by the laws of the state of Georgia to perform the marriage ceremony, and that such marriage was a legal marriage, you will acquit the defendant.

"(2b) If you find the defendant was lawfully married to Mary Carvield as set forth in a previous instruction, and that Mary Pinson is still alive, the burden of proving a divorce is on the defendant."

The court also instructed on reasonable doubt and the credibility of the witnesses.

The defendant excepted "to the giving of the instructions as not fully declaring the law and to instruction 1 as the court has assumed that the marriage in Atlanta, Ga., was by a minister of the gospel, and there is no evidence in this case that the defendant was ever married by a minister of the gospel at such time and place." Defendant also excepted to instruction 2 "because the burden of proof never shifts from the state to the defendant in a case of this kind, and because it is a comment that the defendant did not testify in this case."

When the case was called for trial,"the circuit attorney announced that he had indorsed the names of five witnesses on the information. Mr. Fish, attorney for the defendant, suggested a continuance for two weeks, saying:

"It is not right for him to stick these live additional witnesses on us this morning; it does not give us the opportunity to bring in the evidence necessary."

The court excused the witnesses until the following day, selected and admonished the jury, and excused them for the day. When court convened on the following morning, defendant's counsel stated that he wanted to object to the court's action in allowing the circuit attorney yesterday to indorse upon the indictment the names of the five witnesses; that the defendant was not prepared to go to trial, on account of being surprised by the action of the circuit attorney; that he had not had sufficient time to meet and rebut this evidence, having no knowledge of it until yesterday, and asked the court, before the jury is sworn, to continue the case for the reasons stated. This request was refused, and the defendant excepted. Thereupon the jury was sworn and the trial proceeded.

1. There was no exception saved at the time to the action of the court in permitting the names of the five additional witnesses to be indorsed on the information. The statute requires the names of all witnesses for the state to be indorsed on the indictment (section 3889, H. S. 1919) and the information as well (section 3849, R. S. 1919). The statute provides that other witnesses may be subpoenaed or sworn by the state. State v. O'Day, 89 Mo. 559, 1 S. W. 759; State v. Steifel, 106 Mo. 129, 17 S. W. 227. In State v. Myers, 198 Mo. 225, 94 S. W. 242, referring to State v. Henderson, 186 Mo. loc. cit. 482, 85 S. W. 576, and State v. Barrington, 198 Mo. 23, 95 S. W. 235, it was said:

"There might be a case so flagrant as to amount to a surprise and upon a proper showing that the defendant, if advised that the particular witness would be called against him, would have been able to impeach his character or contradict his testimony by other witnesses, * * * the court * * * could grant a new trial. But in this case, it is not contended that the prosecuting attorney purposely refrained from indorsing the names of the witnesses on the information, in order to obtain an undue advantage of the defendant." 198 Mo. 246, 94 S. W. 249.

The defendant made no showing that entitled him to a continuance.::f defendant was surprised by the evidence of any witness whose name was so indorsed on the information, he still had an opportunity, on motion for new trial, to show his ability to impeach the character of such witness or contradict such testimony. This question is further considered in State v. Lawson, 239 Mo. 591, 145 S. W. 92. If it had been shown to the court that the purpose of the prosecution was to gain undue advantage of the defendant by intrapping or surprising him with false testimony, or if, after the verdict, the defendant in any proper manner had shown that he had been intrapped, or that the evidence was false and his conviction unwarranted, the court in the exercise of a sound discretion would have been authorized to set aside the verdict. But for the court to have excluded the witnesses whose names were indorsed on the information after the case was called for trial would have been to disregard the statute which expressly authorizes the calling of other witnesses for the state.

2. The demurrer to the evidence was properly overruled. The evidence for the state showed without contradiction that the defendant an...