Stebbins v. State
| Decision Date | 03 February 1949 |
| Docket Number | No. 32193.,32193. |
| Citation | 51 S.E.2d. 592 |
| Parties | STEBBINS. v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a married woman, whose lawful husband is still in life and from whom she has not obtained a divorce, marries a single man and the latter is indicted for bigamy under Code, § 26-5604, for marrying the wife of another, such married woman is an accomplice within the meaning of Code, § 38-121, requiring that her testimony be corroborated; and, where in such a case, the only evidence of her prior marriage is the uncorroborated testimony of such married woman, an accomplice, the factum of the first marriage, a sine qua non of the crime charged, is not established, and nothing more appearing, a verdict finding the defendant guilty is contrary to the evidence and the law.
Error from Superior Court, Cobb County; J. H. Hawkins, Judge.
E. J. Stebbins was convicted of bigamy, and he brings error.
Reversed.
Duke & Lowe and Sam F. Lowe, Jr., all of Atlanta, for plaintiff in error.
H. G. Vandiviere, Sol. Gen., of Canton, for defendant in error.
The defendant, Emmette J. Stebbins, an unmarried man, was charged in the indictment with the offense of bigamy in that he married Jessie Bentley, knowing that she was still the lawful wife of Bennie Lovett. There were no demurrers to the indictment. It appears from the record that the State proceeded under Code, § 26-5604, which provides: "Any unmarried man or woman who shall knowingly marry the wife or husband of another, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than three years." The defendant was found guilty and sentenced to from one to two years. To the overruling of his motion for a new trial, based solely on the general grounds, the defendant excepted.
The only evidence introduced as to the factum of the first marriage of Jessie Bentley to Bennie Lovett was that of Jessie Bentley. She testified that she informed the defendant prior to her marriage to him that she had married Bennie Lovett during the year 1942; she did not remember the exact date, and that he was still living and that she had never divorced him. To prove her second marriage, which was her marriage to the defendant, the State introduced Miss Thelma Kemp, an employee in the Clerk's office of the Superior Court of Cobb County, who testified that she could identify the marriage license and the application made for it by the defendant and Jessie Bentley. The documents were introduced in evidence without objection. The license disclosed that the defendant and Jessie Bentley were married September 8, 1945, by J. C. Col-lum, minister. The application disclosed that in reply to question whether she had been previously married, Jessie Bentley replied, "No." The defendant made a lengthy statement to the jury in which he denied that he had any knowledge of Jessie Bentley's prior marriage.
Code, § 38-121, provides: In Kearce v. State, 178 Ga. 220, 172 S.E. 643, 644, it was held: In the case of Chambers v. State, 68 Ga.App. 338(2), 23 S.E.2d 545, 546, it is stated: "An accessory before the fact and principals in the first and second degrees are all accomplices." As has been said by Wharton in his work on Criminal Law, 11th Ed., §§ 2018 and 2019, ...
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