State v. Smiley

• Decision Date: 04 November 1889
• Citation: 12 S.W. 247,98 Mo. 605
• Parties: STATE v. SMILEY.
• Court: Missouri Supreme Court

12 S.W. 247

98 Mo. 605

STATE v. SMILEY.

Supreme Court of Missouri.

November 4, 1889.

BIGAMY — VENUE.

Rev. St. Mo. § 1536, providing that an indictment for bigamy may be found and trial had in the county where the offender is apprehended, is in violation of the constitution of 1875, providing that the indictment must be found by a grand jury of the county where the offense was committed, and, where a second marriage was performed in J. county, an indictment and conviction in M. county is error.

Error to circuit court, Madison county; JAMES D. FOX, Judge.

W. W. Wood, for plaintiff in error. Atty. Gen. Wood, for the State.

BLACK, J.

This indictment for bigamy was found by the grand jury of Madison county. It states that defendant, on the 24th August, 1884, at the county of Johnson, state of Missouri, married Ruth Grant, he then having a wife living, and that afterwards, and prior to the filing of this indictment, he was lawfully apprehended and in custody in Madison county for the felony aforesaid. The statute provides: "Sec. 1533. Every person, having a husband or wife living, who shall marry another person, whether married or single, except in the cases specified in the next section, shall, on conviction, be adjudged guilty of bigamy," etc. Section 1535 relates to those cases where the prohibited marriage is solemnized without this state, and the parties cohabit within this state. "Sec. 1536. An indictment for bigamy, as defined in the preceding sections, may be found, and proceedings, trial, conviction, judgment, and execution thereon had, in the county in which such second or subsequent marriage or cohabitation shall have taken place, or in the county in which the offender may be apprehended."

The first marriage is alleged to have been contracted in this state, so that section 1535 has no application whatever to the present case. Indeed, it is not alleged that defendant cohabited at any time or place with Ruth Grant. The indictment is based on section 1533, and cohabitation is not made an element of the offense therein described. The offense was completed in Johnson county, when the second marriage was solemnized. State v. Fitzgerald, 75 Mo. 572. The indictment should have been preferred by a grand jury of Johnson county, unless it can be upheld by force of the last clause of section 1536, namely, "or in the county in which the offender may be apprehended." There can be no doubt but the allegations of the indictment are sufficient to bring the case within this clause. This clause has nothing to do with...