State v. St. John

• Decision Date: 29 April 1902
• Citation: 68 S.W. 374,94 Mo. App. 229
• Parties: STATE v. ST. JOHN.
• Court: Missouri Court of Appeals

68 S.W. 374

94 Mo. App. 229

STATE v. ST. JOHN.

Court of Appeals at St. Louis, Missouri.

April 29, 1902.

BIGAMY — EVIDENCE OF PRIOR MARRIAGE — SUFFICIENCY — ADMISSIBILITY — SUFFICIENCY OF FINDING — INSTRUCTION WITHOUT EVIDENCE — ERROR.

1. Defendant was indicted for the misdemeanor of living in an open and notorious illicit relation (forbidden by section 2175, Rev. St. 1899) with a woman in Missouri, although married to another woman in Utah. It appeared that a ceremony of marriage had been performed by defendant with the woman in Missouri. Held, that the inference of innocence affixed to that act was not removed even if defendant had previously lived in Utah with the other woman, and held her out as his wife to the public. It would be necessary to a conviction that the jury should find as a fact that defendant had made a valid contract of marriage with the other woman mentioned.

2. Testimony that a man holds out a woman to the public as his wife, and lives with her as such, tends to establish the ultimate fact of marriage, but not as an inference of law. It is error to instruct that testimony of said facts alone "would constitute a marriage."

3. Defendant's confidential communication in the form of a statement on the back of a photograph sent to the woman charged to be his wife is not admissible in evidence against him in a prosecution of this sort; but letters jointly addressed to her and to her children, as well as letters to her children, are admissible, — the latter because the marital privilege of confidence does not extend to them, and the former because the privilege is waived by admitting other persons to share the communication.

4. In a prosecution for bigamy the fact of prior marriage must be found by the triors of the facts. It is not enough for them to find marital association and repute.

5. It is error to give an instruction authorizing the finding of a fact which there is no evidence, direct or inferential, to support.

(Syllabus by the Judge.)

Appeal from circuit court, Lewis county; Edwin R. McKee, Judge.

Horace H. St. John was convicted of living in open and notorious illicit relation with a woman other than his wife, and appeals. Reversed.

Blair & Marchand and Mr. Dowell, for appellant. Walter Hilbert, for the State.

BARCLAY, J.

Defendant has appealed from a judgment of conviction upon an indictment for misdemeanor defined by section 3798, Rev. St. 1889, same as section 2175, Rev. St. 1899. The charge refers to the first and second specifications contained in said section. Defendant was fined $500 after a trial by jury. He preserved exceptions in due form to several rulings, on which he has assigned error in this court.

The state offered evidence tending to show that a marriage ceremony was performed in Missouri, October 31, 1894, between defendant and a woman with whom he has lived as husband and wife ever since at La Belle, Mo. The evidence consisted of a license, return, and certificate of record, authorizing and describing such a marriage, together with oral testimony of the minister of the gospel who officiated. The woman who took part with defendant in the ceremony is named in the indictment as the person with whom the offense charged against him was committed. The contention of the state is that defendant was then the husband of another woman with whom he had lived in Utah. Defendant, on his own behalf, admitted that he lived with the other woman for several years in Utah, had two children, and finally left there and came to Missouri because she neglected to obtain a divorce from her husband which she had promised to get when they began to live together. He and she were physicians, conducted a sanitarium together, and were never married to each other, according to defendant's account. It appeared from the state's testimony that defendant communicated the fact of his relations with the woman in Utah to the minister who performed the marriage ceremony in Missouri, a few days before the latter event. The state put in evidence, against defendant's objection and exception, certain documents purporting to have been sent to the postmaster at La Belle, Mo., by the woman in Utah, all exhibiting handwriting which the postmaster verified as that of defendant. The documents were: (1) A photograph of defendant, indorsed with these words: "To My Beloved, Affectionate and Lawful Wife, Nell, August 16, 1896." (2) A writing, dated August 17, 1896, signed "Papa," addressed to "My Beautiful & Bonnie Baby, My Daughter, Queen Mab," and containing a variety of tender and loving messages to her. (3) A long letter to "Nell, Grace, and Mabel," dated March 20, 1898, signed "Papa," and full of affectionate acknowledgments of defendant's parentage of the children. (4) A letter to Grace and Mabel of similar character to the last mentioned, dated November 8, 1896. "Grace" and "Mabel" were evidently the names of the children, and "Nell" was the name of their mother, according to the statements in these MSS. The letters contain distinct admissions that defendant was the father and "Nell" the mother of the children, but there is nothing else in them admitting a marriage between the parents. The objection to each of these items of evidence was that the document was a personal communication between husband and wife (according to the theory of the prosecution), and as such privileged. But the objection was overruled, and exception duly saved.

Among the instructions given for the state was the following: "If defendant lived and cohabited with another woman in another state as her husband, and held her out to the public as his wife, and received and treated her as such, this would constitute a marriage, and would warrant you in finding that he was a married man, and married to another woman, in...