Witt v. State

• Decision Date: 13 June 1912
• Citation: Witt v. State, 5 Ala.App. 137, 59 So. 715 (Ala. App. 1912)
• Parties: WITT v. STATE.
• Court: Alabama Court of Appeals

59 So. 715

5 Ala.App. 137

WITT v. STATE.

Court of Appeals of Alabama

June 13, 1912

Rehearing Denied July 11, 1912.

Appeal from Law and Equity Court, Madison County; James H Ballentine, Judge.

William Witt was convicted of bigamy, and he appeals.Affirmed.

Turner Petty, of Huntsville, and Lee H. Weil of Montgomery, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM J.

The defendant was convicted of bigamy, and appeals.

The charging part of the indictment, as set out in the record, is as follows: "The grand jury of said county charge that, before the finding of this indictment, William Witt, having a wife then living, unlawfully married on Pearl Randolph, against the peace and dignity of the state of Alabama."It is insisted, and was raised by motion and demurrer in the trial court, that the indictment is void, or fails to charge an offense, because, first, it does not aver that the defendant married "one"Pearl Randolph; and, second, for that it fails to aver that Pearl Randolph is a woman.The use of the word "on" in the indictment in lieu of the word "one" is of no consequence, as the word "one" prefaced to the name of the person adds nothing to the meaning or understanding, or definiteness, of description.The error is manifestly clerical, and the sense is not so obscured that a person of ordinary intelligence cannot from the context determine with certainty the meaning.As said by this court in Sanders v. State, 2 Ala. App. 13, 56 So. 69: "In our opinion an ordinary man, reading the indictment for the purpose of ascertaining its meaning, would in all probability not detect the defect complained of, and, if he did so, he would from the context know, as a matter of common sense, the exact word which was in fact used, and that the error complained of was merely clerical."It is impossible that the defect complained of could have misled any one of common understanding, or in any way injured the defendant or prejudiced his rights in the slightest degree or remotest manner.The defendant, court, and jury, on an inspection of the indictment or hearing it read, would know with certainty what it intended to charge."Before an objection because of false grammar, incorrect spelling, or mere clerical errors, is entertained, the court should be satisfied of the tendency of the error to mislead, or to leave in doubt as to the meaning a person of common understanding, reading, not for the purpose of finding defects, but to ascertain what is intended to be charged."Grant v. State,55 Ala. 201.Except as to the clerical error above discussed, the indictment is in the Code form (form No. 22, p. 663, of the Criminal Code), and is sufficient ( Hankinson v. State, 2 Ala. App. 110, 57 So. 61;Bailey v. State,99 Ala. 143, 13 So. 566;Smith v. State,63 Ala. 55;Wilson v. State,61 Ala. 151;Weed v. State,55 Ala. 13).It was not necessary to aver in the indictment that one of the persons was a man and the other a woman.Rich v. State, 1 Ala. App. 243, 55 So. 1022;McLeod v. State,35 Ala. 395.

The certificates to the copy of the records of Lincoln county, Tenn., of the marriage of the defendant to Mary Washburn are in accordance with the United States statute(3 Fed. Stat. Ann. § 906, p. 39, U.S. Comp. St.1901, p. 677;Reid v. State,168 Ala. 118, 53 So. 254), and the certified copy was properly admitted in evidence.

The decree of divorce granted by the superior court of Oklahoma county, state of Oklahoma, did not by the terms of the decree become absolute or take effect until six months after the 14th day of May, 1910, and the undisputed evidence showed that the defendant, having a wife then living, contracted a second marriage with Pearl Randolph on the 25th day of June 1910, before the decree of divorce, even if valid, became operative or of force and effect as a decree.The decree was inoperative on its face until the six months have expired, and in fixing the status of the parties during that period is in effect but a decree nisi, and a marriage contracted with another party within such...