Summary
In Bryant v. State, 179 Miss. 739, 176 So. 590, 592, which was a prosecution for bigamy, the first wife was called as a witness against her husband and, upon objection, she was not permitted to testify and was withdrawn from the witness stand.
Summary of this case from Outlaw v. StateOpinion
No. 32713.
November 8, 1937.
1. CRIMINAL LAW.
Under statute, a motion to withdraw a plea of not guilty and for permission to file a demurrer to an indictment after a jury had been impaneled and both sides were ready to offer evidence was properly overruled as not timely (Code 1930, section 1206).
2. BIGAMY.
An indictment charging that defendant married a certain party when he was then and there legally married to another was sufficient to charge that such other was living when the second marriage was consummated (Code 1930, section 795).
3. BIGAMY.
Indictment charging that defendant on a certain day and at a certain place, being legally married to a certain party, did willfully, unlawfully, feloniously, knowingly, and bigamously marry and have for his wife a certain other, was sufficient (Code 1930, section 795).
4. BIGAMY.
An indictment charging that marriage relation still existed then and there between accused and a certain party when he then and there married another sufficiently alleged that accused had two living wives at the same time, since defendant could not "then and there" have been married if the former wife had been dead, as the marriage relationship did not exist as to survivor after the death of one spouse (Code 1930, section 795).
5. BIGAMY.
It is necessary to allege and prove that a spouse of a first marriage is living when a second marriage is contracted, to constitute bigamy (Code 1930, section 795).
6. INDICTMENT AND INFORMATION.
An indictment charging bigamy under a certain section of the statute need not set out the exceptions contained in succeeding section (Code 1930, sections 795, 796).
7. CRIMINAL LAW.
In prosecution for bigamy, where guilt of defendant was fully established by other evidence, introduction of first wife who was sworn but withdrawn before she had testified against defendant was harmless error, notwithstanding that under statute the lawful wife of an accused tried on an indictment is not a competent witness against him (Code 1930, sections 795, 1528).
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Currie Currie, of Hattiesburg, for appellant.
It is respectfully submitted that the indictment is utterly insufficient to charge the crime of bigamy, and that the court committed clear reversible error in refusing to permit the appellant to file the demurrer.
Section 795, Mississippi Code of 1930, Annotated, defines bigamy, and prescribes the punishment, and said section contains this provision, "except in the cases hereinafter named," and Section 796, Mississippi Code 1930, Annotated, sets out the exceptions, and the indictment did not charge that the appellant's alleged second marriage was not within any of the exceptions created by said Section 796, of said Code, and these statutes must and will be construed together and it is essential to the validity of the indictment, under these statutes, that it should charge, aver or allege that no one of the exceptions created by this statute existed. Such charge was a material part of the indictment. It was an essential element of the indictment.
This indictment does not charge, aver or allege as is required by the statute, that Mrs. Melinda Parker Bryant was at the time of the alleged second marriage the living wife of the appellant.
Section 795, Code of 1930.
The allegation in the indictment that the appellant was "then and there legally married to Mrs. Melinda Parker Bryant," does not by any means charge that Mrs. Melinda Parker Bryant was the living wife of the appellant at the time of the alleged second marriage.
There can be no mere inference but there must be a direct averment that Mrs. Melinda Parker Bryant was living at the time and at the very moment when the appellant contracted the second alleged marriage.
The language of said Section 795, of the Code of 1930, "except in the cases hereinafter named," incorporates into it and makes a part of it said Section 796 of the Code of 1930, and the exceptions contained in said Section 796 are a part of and are read into said Section 795 and under the very wording of these statutes they are each and both component and essential parts of the other, and under the legislative scheme cannot be read separately or construed separately, and we assert upon reason that the indictment in this case is defective because it did not charge, allege or aver that none of the exceptions declared in these statutes did not exist.
Graves v. State, 134 Miss. 547, 99 So. 364.
We further submit that this is not a case of two separate statutes dealing with the same subject matter, so that one of the statutes may be completely separated from the other, and each statute be given its full force and effect, but this is a case by the very language of the statutes themselves, in which two statutes forming necessary and component parts of each other, deal with one single subject matter, to-wit: bigamy.
10 Encyc. Pl. Pr., page 473.
The record in this case shows that Mrs. Melinda Parker Bryant, the alleged first wife of the appellant, was called as a witness by the state to testify against the appellant, was placed upon the witness stand by the state as a witness for the state and against the appellant, in the presence of the jury, and that the state proceeded to examine her as a witness for the state and against the appellant, in the presence and hearing of the jury, and that the appellant objected, and the record before the court with knowledge of which the court was charged, showed that the witness was the person alleged to be the first wife of the appellant, and when the court required the appellant to state his reasons for objecting, the district attorney withdrew the witness, whereupon, the appellant then and there moved the court to enter a mistrial, "for the reason that the district attorney knew that it was a violation of the law to cause the wife, or the alleged wife, of the appellant to testify against him, and he has introduced her, made profert of her here before the jury, and alleging in the indictment that she is the legal wife of the defendant — and he has made profert of her and examined her in part before the jury, and we move the court to enter a mistrial and discharge the jury."
Section 1528, Code of 1930.
A wife is not a competent witness against her husband who is on trial for crime.
Byrd v. State, 57 Miss. 243; Leach v. Shelby, 58 Miss. 681; Finklea v. State, 94 Miss. 777, 48 So. 1; Pearson v. State, 97 Miss. 844, 53 So. 689; McQueen v. State, 139 Miss. 457, 104 So. 166.
It was an unfair advantage to take of the appellant, in plain violation of the statute, for the state to call his alleged wife as a witness against him and to place her as a witness upon the stand to testify for the state against him and to force the appellant to object to such proceedings in the presence and hearing of the jury, and the action of the court in undertaking to force counsel for the appellant to state the reason for his objection in the presence and hearing of the jury further accentuated this unfair, illegal and highly prejudicial proceeding, and the mind of the jury had been poisoned and it by no means cured this highly prejudicial error for the state to then withdraw the witness without any ruling of the court, and we repeat that the record in the case was before the court, that the court was charged with the knowledge of the contents of the record and was charged with the knowledge that the witness was the alleged first wife of the appellant, and the court knew the statute and must have known the ground of the objection, and whether the court knew the ground of the objection or not it stood charged with knowledge of the law, with knowledge of the record, and knew that the alleged wife was utterly incompetent to testify against the appellant, and the appellant did voice his objection to the court and the court knew that he was objecting and not consenting to her testifying as a witness against him.
The indictment does not charge that the first wife was living and the court had refused, under a statute which it erroneously considered binding on it, to allow the defects in the indictment to be raised by a proposed demurrer, and the state, fully appreciating the necessity of proving that the first wife was living, unlawfully called the first wife as a witness against the appellant, had her sworn and placed on the witness stand before the jury and asked her some questions which she answered, and then on the objection of the appellant the state withdrew the wife as a witness, and the state manifestly called the first wife to show her to the jury and thereby bridge that chasm in its case.
Byrd v. State, 57 Miss. 243; Johnson v. State, 63 Miss. 313 ; Leach v. Shelby, 58 Miss. 681; Code v. State, 75 Miss. 142; Cole v. State, 21 So. 706.
W.D. Conn, Jr., Assistant Attorney General, for the state.
The state submits that the court properly overruled this request of appellant and his counsel to be allowed to withdraw the plea of not guilty and enter a demurrer to the indictment.
Section 1206, Code of 1930.
In the case of McQueen v. State, 139 Miss. 457, 104 So. 168, this court reversed a conviction for bigamy where the first wife of the defendant in that case had been used as a witness to establish the first marriage. The court held in that case that she was not a competent witness against her husband in a bigamy prosecution, although it may be noted that two of the judges of the court vigorously dissented. So that, under this decision, it may be stated that it is the law of Mississippi that the first wife may not be introduced as a witness against her husband to prove a former marriage, where the husband is on trial for bigamy.
In the instant case, however, the wife did not prove any former marriage, if she was, in fact, the former wife of appellant. She was merely allowed to state her name and that she was acquainted with the appellant, Robert Bryant. Upon objection, the state withdrew the witness and what was mentioned hereinabove is the full extent of her testimony. Under such circumstances the question before the court now is whether or not the action of the state in putting this witness on and asking the two or three questions that it did was sufficient to justify the court in entering a mistrial in the case. The witness did not, in any manner, testify to anything that might be construed as contrary to her husband and while it may be conceded that it was improper to offer the wife, or the alleged wife, of appellant as a witness, nevertheless, under the circumstances, it would appear that no harm was done and that this court should not reverse the conviction in this case under the circumstances reflected by this record.
Argued orally by Neil T. Currie, for appellant, and by W.D. Conn, Jr., for the state.
The appellant, Robert Bryant, was convicted on an indictment charging bigamy, the pertinent part of which is as follows: "That Robert Bryant on the 6th day of July, 1936, in Forrest County aforesaid: being then and there legally married to Mrs. Melinda Parker Bryant did then and there wilfully, unlawfully, feloniously, knowingly and bigamously marry and have for his wife, one Hattie Byrd."
After the appellant had entered a plea of not guilty in the aforementioned indictment, and after a jury had been impaneled to try the case and both sides were ready to offer evidence, counsel for the appellant asked leave to withdraw the plea of not guilty and to file a demurrer to the indictment, which demurrer was attached to the motion to withdraw the plea. The court held that "the demurrer is not timely, comes too late, and, therefore, the motion is overruled."
The action of the court is in line with section 1206, Code of 1930, which is as follows: "All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward; and the court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared."
The appellant, however, contends that the indictment is so defective as not to constitute a charge of bigamy, or any other crime, his contention being based on two grounds raised by the proffered demurrer: (1) That the indictment failed to allege that Mrs. Melinda Parker Bryant was living at the time of the second marriage; and (2) that the indictment drawn under section 795, Code of 1930, does not negative the exceptions set forth in section 796, Code of 1930, the statutes relating to the crime of bigamy.
1. We think it is clear from the language of the indictment wherein it is charged that the appellant married Hattie Byrd when he was "then and there legally married to Mrs. Melinda Parker Bryant," is sufficient to charge that Mrs. Melinda Parker Bryant was, when the second marriage was consummated, then living. We think also that the appellant was sufficiently informed of the nature and cause of the accusation preferred against him; that there was such a specific, sufficient description of the offense as to enable him to make preparation for his trial, and such identification of it as to bar another trial thereon.
In effect, the indictment charged that the marriage relation still existed "then and there" between the accused and Melinda when he "then and there" married Hattie. This is equivalent to saying that Melinda was alive when the second marriage took place. In the sense here used, he was not then and there married if the woman, Melinda, had been dead, so that the obvious is true that the indictment sufficiently avers that Melinda was living at the time it is averred that the accused married Hattie. Marriage does not exist as to the survivor after the death of one spouse. The indictment sufficiently alleges that the accused had two living wives at the same time. The evidence in this case shows, without question, that Mrs. Melinda Parker Bryant was living at the time of the second marriage, and was, in fact, at the courthouse on the date of the trial of this cause in the lower court. We do not commend the form of this indictment to the bar, as, of course, it is necessary to allege and prove that the spouse of the first marriage was living when the second marriage is contracted in order to constitute bigamy.
2. The contention that it is necessary on a charge of bigamy to negative the exceptions set forth in section 796, Code of 1930, is without merit, as it is not necessary to do so. See Bennett v. State, 100 Miss. 684, 56 So. 777.
It is next assigned as error that Mrs. Melinda Parker Bryant was called as a witness by the district attorney, as to which the following transpired:
"By Mr. Deavours (the district attorney): `Q. What is your name, please Ma'am? A. Melinda Bryant.
"`Q. Speak out loud, Mrs. Bryant, so all these men can hear you. A. Yes, sir.
"`Q. Mrs. Bryant, are you acquainted with Robert Bryant, the defendant in this case? A. Yes, sir.'
"By Mr. Currie: `The defendant objects.'
"By the Court: `Why? State your ground for objection.'
"By Mr. Currie: `We object.'
"By the Court: `Overruled.'
"By Mr. Currie: `The court couldn't require me to state my ground for objection.'
"By the Court: `I believe the Supreme Court has held that unless the ground is stated, the objection shall be overruled.'
"By Mr. Currie: `We object.'
"By Mr. Deavours: `We will withdraw the witness.'
"By Mr. Currie: `The defendant now moves the Court to enter a mistrial in this case.'
"By the Court: `Overruled.'
"By Mr. Currie: `For the reason that the District Attorney knew that it is a violation of the law to cause the wife, or the alleged wife of the defendant to testify against him, and he has introduced her — made profert of her here before the jury, and alleging in the indictment that she is the legal wife of the defendant — and he has made profert of her and examined her in part before the jury, and we move the Court to enter a mistrial and discharge the jury.'
"By the Court: `Proceed, Gentlemen.'
"By Mr. Currie: `We want a ruling.'
"By the Court: `Overruled.'
"`Except.'"
We here state that, independently of the above incident, the fact that his wife, Mrs. Melinda Parker Bryant, was living at the time of the marriage and at the time of the trial, fully appears in the evidence; and the jury could not have done otherwise than to bring in a verdict of guilty in this case.
Under section 1528, Code of 1930, the lawful wife of the accused, tried on an indictment, is not a competent witness against him. See McQueen v. State, 139 Miss. 457, 104 So. 168, wherein a case was reversed because the court permitted the first wife of the defendant to testify as a witness against him in order to establish the first marriage. In the case at bar, the first wife did not testify against the accused, except by profert of her person before the jury; and we are not prepared to say that the introduction of the wife, sworn as a witness before the jury, was reversible error, in fact, we are of opinion herein that it was harmless error, as the guilt of the appellant was amply and fully established by all the other evidence in the case.
We find no reversible error herein.
Affirmed.