Opinion
No. 38167.
December 10, 1951.
1. Bigamy — presumptions — dissolution of former marriage.
In a charge of bigamy there is no presumption of a dissolution of a former marriage.
2. Bigamy — affirmative defense.
A substantive element of the charge and of the testimony in a prosecution for bigamy is the fact that the first wife was alive at the time of the second marriage, but the fact of a subsequent divorce is a matter of affirmative defense and the State need not initially negative such defense by either allegation or proof.
3. Bigamy — affirmative proof for prosecution.
When it has been proved by the prosecution in a bigamy case that there were two marriages and that the former spouse still survives, this is all that the statute requires in its definition of the substantive crime.
4. Criminal procedure — argument by prosecuting attorney — ambiguous comment on failure of defendant to put on proof.
While there is a difference between suggesting in an argument by the prosecuting attorney that the defendant has not testified and in calling attention to his failure to put other witnesses on the stand, an argument which is ambiguous in the respects mentioned is to be condemned.
5. Criminal procedure — argument by prosecuting attorney.
The argument by the prosecuting attorney in a bigamy case wherein he referred to a previous prosecution and sentence of defendant's second wife, who was particeps criminis with him, was improper, even though it was provoked by counsel for the accused who had chided the prosecution for its belated attention to similar offenses by the colored race.
6. Criminal procedure — improper argument when harmless error.
Although improper arguments have been made by the prosecuting attorney yet when guilt of the accused has been shown by public records and the direct testimony of unimpeached witnesses, without any countervailing evidence, so that the jury could not justifiably have brought in any verdict other than guilty, there will be no reversal since in such a case errors other than those which work a denial of constitutional rights are not reversible.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Jones County; F.B. COLLINS, Judge.
Grover C. Doggette, for appellant.
I. The State failed in its prosecution to prove that the appellant's alleged first wife, Eddie Mae Blanks, was alive at the time the alleged bigamous marriage was performed. Bryant v. State, 179 Miss. 739, 176 So. 590; White v. State, 183 Miss. 351, 184 So. 303.
II. There is a material variance between the date of the second marriage as alleged in the indictment and the date shown by the proof. Warren v. State, 106 Miss. 502, 66 So. 979.
III. The trial court erred in overruling the appellant's two special bills of exception to the argument of the district attorney. Lambert v. State, 199 Miss. 790, 25 So.2d 477; Sanders v. State, 73 Miss. 444, 18 So. 541; Reddick v. State, 72 Miss. 1008, 16 So. 490. Geo. H. Ethridge, Assistant Attorney General, for appellee.
Cited and discussed the following:
Ladner v. Pigford, 138 Miss. 461, 103 So. 218; Beardsley v. A. V. Ry. Co., 79 Miss. 417, 40 So. 660; Bryant v. State, 179 Miss. 739, 176 So. 590; McQueen v. State, 143 Miss. 787, 109 So. 799; White v. State, 183 Miss. 351, 184 So. 393; Burnley v. State, 201 Miss. 234, 29 So. 94.
This is an appeal from a conviction of bigamy. Appellant and Eddie Mae Blanks were married August 12, 1935. Appellant contracted another marriage with Cloteal Jones, December 25, 1948.
Error is assigned for the failure of the State to prove the former wife to be alive at the time of the second pretended marriage. The record amply shows that she was living at the time of the trial.
Further error is based upon an alleged variance between the allegation and proof as to the date of the second marriage. It is true that the memory of the officiating minister fixed the date as December 25, 1949. However, the marriage record shows the ceremony was performed in 1948.
The following instruction is complained of: "The Court instructs the jury for the State that it is not incumbent upon the State to show that the defendant Joe Grace, Alias, Lieutenant Grace was divorced from Eddie Mae Blanks in order for you to find him guilty of bigamy provided you believe beyond a reasonable doubt that he is guilty as charged in the indictment."
The instruction correctly states the law. (Hn 1) In a charge of bigamy, there is no presumption of a dissolution of a former marriage. (Hn 2) It is true that a substantive element of the charge and of the testimony is the fact that the first wife was alive at the time of the second marriage. White v. State, 183 Miss. 351, 184 So. 303. However, the fact of a subsequent divorce is a matter of affirmative defense. The State need not initially negative such defense by either allegation or proof. Bennett v. State, 100 Miss. 684, 56 So. 777; 10 C.J.S., Bigamy, Sec. 16(b); 7 Am. Jur., Bigamy, Secs. 33, 34. In this respect the rule does not follow that applied in civil cases. Compare Ladner v. Pigford, 138 Miss. 461, 103 So. 218; Ouzts v. Carroll, 190 Miss. 217, 199 So. 76. (Hn 3) In the instant case there is no contradiction of the fact of the two marriages and the continued survival of the former spouse. This is all the statute requires in its definition of the substantive crime. The former wife was not called to testify that there had been a divorce.
(Hn 4) By special bills of exception the argument of the prosecutor is made part of the record on appeal. The language used was as follows: "In a case like this where the defendant has put on no proof or evidence, why should Mr. Doggette make such an argument?" While there is a difference between suggesting that a defendant has not testified and in calling attention to his failure to put others upon the stand, the very fact of ambiguity here should draw condemnation upon the argument. The error is mitigated somewhat by the context of the argument wherein the matter of the burden of proof was being discussed, and the apparent availability of the former wife or court records to show a divorce was significant.
(Hn 5) Further complaint is made as to the following argument by the prosecutor which allegedly was provoked by counsel for the accused who had chided the prosecution for a belated and unprecedented attention to similar offenses by those of the colored race: "We aren't late. We started last October when we convicted old Cloteal Jones and sent her to the penitentiary." In view of the fact that this was the person who was particeps criminis with appellant, the argument is indefensible. Compare Gulf Mobile Northern R. Company v. Weldy, 195 Miss. 345, 353, 14 So.2d 340. (Hn 6) Both such arguments are disapproved. We must consider, however, whether prejudice necessarily resulted. There was no proof offered on behalf of the accused. Guilt was shown both by solemn public records and direct testimony of unimpeached witnesses. The jury under its oath could not justifiably have brought in any verdict other than guilty, and where guilt is evident, errors other than such as work a denial of constitutional rights, are not reversible. Rule 11, Supreme Court Rules.
Affirmed.
Hall, J., took no part in the decision of this case.