text:
    Louisa Johnson vs. The State.
    1. Ckiminai, Pleading: Indictment.

    An indictment for stealing a pocket book and contents of the value of twenty dollars, without describing the contents, charges no larceny except of the pocket book; and if the proof shows it to be worth less than two dollars, will not support a conviction for grand larceny, nor justify the admission of evidence of the contents.
    2. Same: Evidence.

    Evidence of the contents of a stolen article is not admissible, when they are not described in the indictment.
    APPEAL from Lee Circuit Court,
    Hon. J. N. Cypert, Circuit Judge.

      Attorney General for appellee.
   English, Ch. J.:

Indictment as follows:

The Grand Jury of Lee County, etc., etc., accuse Louisa Johnson of the crime of grand larceny, committed as follows, viz.: That said Louisa Johnson on etc., at etc., one pocket book and contents of the value of twenty dollars of the goods and chattels of John W. Watson, unlawfully and feloniously did steal, take and-carry away, against the peace,” etc.

The defendant demurred to the indictment; the court overruled the demurrer, and she standing mute, the court ordered the plea of not guilty entered for her, upon which she was tried, and the jury returned the following verdict: uWe, the jury, find the defendant guilty, and fix the penalty at three years in the •penitentiary.”

The defendant filed motions for a new trial and in arrest of judgment, which were overruled, and she was sentenced according to the verdict, took a bill of exceptions, and prayed an appeal, which was allowed by one of the judges of this court.

If the appellant had been indicted for stealing the contents of a pocket book, every lawyer who knows anything about criminal pleading would pronounce the indictment bad, for want of a description of the property stolen. But she was charged with stealing “ one pocket book and contents.” What were the contents of the pocket book ? Did it contain United States treasury notes, bank bills, bonds, notes, bills of exchange, checks, deeds, gold or silver or coin, or any thing which by common law or statute is made the subject of larceny ? The indictment does not answer this question; it is silent as to what were the contents of the pocket book. Was the indictment good for any thing beyond the charge of stealing one pocket book? We think not.

We have examined many cases in which persons were indicted for stealing pocket books, purses, wallets, boxes, trunks, ■etc., containing bank notes, money, papers and other articles of value, and in all instances, when the prosecutions were for stealing the contents as well as the pocket book, purse, etc., the contents are described with more or less particularity; among them the following:

State v. Due, 7 Foster, N. H., 256 ; People v. Swan, 1 Parker Cr. R., 9 ; People v. Cogdell, 1 Hill, 94; Porter v. State, Martin and Yerger, 225 ; Regina v. Mole, 47 Eng. C. L., 416 ; DuBois v. State, 50 Ala., 139.

Chitty gives a precedent for stealing a bag containing copper coin. 3 Ch. Cr. L., 960.

A n indictment for stealing a bag and contents, would be uncertain to every intent as to the contents, for the bag might contain coin, shot or peas.

In DuBois v. State, 50 Ala., 139, the prisoner was charged with stealing a pocket book and contents from the person of another, and the indictment was in the form following :

The Grand Jury of etc., charge that before the finding of this indictment, James DuBois feloniously took and carried away,’ from the person of William E. Beard, one pocket book, containing fifty dollars in national currency of the United States, the exact denomination of which is to the Grand Jury unknown, one note on W. P. Pushing for two hundred and twenty dollars, one note on Orr & Bonner, for two hundred and. seven dollars, two notes on W* Gr* Eandall, for five hundred dollars each, of the value of more than fifty dollars, the personal property of William E. Beard, against the peace, etc.”

On demurrer to the indictment, the court held that it contained a sufficient description of the stolen property.

By act of 23d January, 1875, (Acts 187A-5, p. 112), every person convicted of larceny, when the value of the property stolen exceeds the sum of $2, shall be punished by imprisonment in the penitentiary not less than one, nor more than five years, and when the value of the property does not exceed the sunt of $2, by imprisonment in the county jail not more than one year, and by fine not exceeding $300. This act amends sec. 1,357 of Gantt’s Digest.

The appellant was not charged with stealing any thing but one pocket book, its contents being in no way described;

On the trial, the court permitted the State to prove the con- ■ tents of the pocket book, against the objection of the appellant.

The pocket book was proven to be worth about six bits or a dollar, when new, and it had been in use about a year when stolen. It seems from the testimony of John W. Watson, the owner, to have contained $20, of which there were two 50 cent, pieces of United States currency, and the balance in small bills, of Helena money, perhaps, which was then current in Lee County. 'The pocket book and its contents, the witness stated,, were worth $20.

The appellant was not charged with stealing fractional currency,, or Helena money, whatever it may be, and the'State had no right ' to prove the value of the contents of the pocket book, to make out a case of grand larceny against appellant. There was no proof that the pocket book was worth more than $1.

Under the charge in the indictment, and upon such of the evidence as was conjpetent, the jury was not warranted in finding the appellant guilty of a. penitentiary offense, under the act. above cited, nor the court in rendering judgment in accordance-with the verdict. The judgment should have been arrested, and! a new trial granted appellant.

There was no direct proof that the appellant stole the pocketbook, but there were circumstances in evidence from which the jury no doubt believed her guilty of the theft, as they so found.

The judgment must be reversed, and the cause remanded for a. new trial, etc.


source: Caselaw Access Project

author: Harrison, J.:

license: Public Domain

text:
    State of Arkansas vs. Clayton.
    Criminal Pleading: Indictment.

    The act of May 30th, 1874, regulating the licensing of dram shops, makes-no change in the taxes, or in the mode of licensing those who sell in quantities of a quart or more, but the punishment it prescribes for keeping a saloon or dram shop without a license, is different from that for failing to pay the taxes required of those who sell by the quart and in larger quantity; and an indictment that does not show whether the defendant is charged with selling by the quart and in larger quantities, or in less quantities than that, is defective and demurrable 'for uncertainty.
    APPEAL from Sharp Circuit Court.
    Hon. William Byers, Circuit Judge.

      Attorney General for the State.
   Harrison, J.:

Appellee was indicted for failing to pay the special taxes due. by him as a vendor of ardent spirits. The indictment was as. follows:

The Grand Jury of Sharp County in the name and by the authority of the State of Arkansas, accuse Walker Clayton of' the crime of failing to pay special taxes committed as follows:

The said Walker Clayton, on the 17th day of August, A. D. 1876, in the County of Sharp unlawfully did follow the occupation of a vendor of ardent spirits by then and there selling to one Thomas Y. Huddleston, ardent spirits, on which special taxes are-levied by law: he, the said Walker Clayton, then and there having unlawfully failed to pay the special taxes levied thereon bylaw, against the peace and dignity of the State of Arkansas.

J. L. Abernethy, Pros. Atty.

The defendant demurred to the indictment for the want of certainty; and as charging no offense. The court sustained the-demurrer, and quashed the indictment.

The statute (revenue act of April 28th, 1873), imposes on liquors dealers, whether selling by •wholesale or retail, an annual State and county tax of $100, or for any part of the current year in which the business is carried on: and directs the county clerk from time to time to issue and place in the hands of the collector blank licenses, to be filled up and countersigned by the collector and delivered to such dealers upon the payment of the taxes. The refusal or failure to pay the taxes is declared a misdemeanor, and the person so offending is subject upon coflviction to a fine of not less than two hundred, nor more than one thousand dollars.

The act of May 30th, 1874, regulating the licensing of dram shops, prohibits the keeping a drinking saloon or dram shop for the sale of ardent, vinous, or fermented liquors, for sale in quantities less than one quart, without having procured a license for that purpose from the County Court: and the County Court is not authorized to issue such license except by the consent of the electors of the township, city, ward, or incorporated town in which the saloon or dramshop is to be kept, expressed by an election, held to determine whether such licenses shall be granted or not: nor until the applicant therefor shall pay to the proper officers all fees, licenses, costs and taxes that may be levied by any proper authority : and have entered into bond to the State of Arkansas in the penal sum of f2000, with two good sureties, conditioned that such applicant will pay all damages that may be occasioned by reason of liquors drank at his house, and .shall pay to any person all such sums of money as may be lost at gaming in his said saloon or dram shop, or any room or building thereto attached.

And it declares that any person keeping a drinking saloon or dram shop, without procuring a license, shall be deemed guilty of a misdemeaner, and on conviction, shall be fined in any sum not less than one hundred dollars and imprisoned' in the county jail not less than thirty days.

The latter act makes no change in the taxes or in the mode of licensing those who sell in quantities of a quart or more, but the punishment it prescribes for keeping a saloon or dram shop without a license is different from that for failing to pay the taxes required of those who sell by the quart and in larger quantities.-

It does not appear from the indictment, whether it was the intention to charge the defendant with selling by the quart and in larger quantities, or in less quantities than that. If the latter, he should have been charged with keeping a drinking saloon or dram shop, without having procured a license, and if the former,. the charge should have been restricted to the occupation of selling in quantities of a quart and over. The charge of failing to pay the taxes without such restriction applied to and embraced every vendor of liquors, and from its generality it was impossible for the defendant to understand the particular offense intended to be charged. For this reason the indictment was defective, and the court did not err in sustaining the demurrer.

Judgment affirmed.


author: Harrison, J.: .

text:
    Sullivan vs. The State.
    Cbiminal Law: Unlawful Cohabitation.

    Living or dwelling together in the same house, is an essential element of the crime of unlawful cohabitation as husband and wife.
    APPEAL from Lonolce Circuit Court.
    Hon. J. "W. Martin, Circuit Judge.

      LTallum, for appellant.

      Attorney General, eontra.

   Harrison, J.: .

The appellant was convicted in the Lonoke Circuit Court, upon an indictment, which charged him and.one Laura Durham with cohabiting together as husband and wife without being, married, and fined $100.

• The evidence for the State was as follows :

W. H. Frazier, testified: That he frequently staid all night with the defendant, at his father’s house in the Richwoods, in Lonoke County, and on one occasion,within six months before the finding of the indictment, he slept in a large room with three beds in it, one of which was occupied by himself and another by the defendant. The defendant went to bed before he did, and when he came in, about eleven o’clock, he asked the defendant, for a light. He told him there was none, and that he could find the bed. "When he awoke, next morning, the defendant had left the room, and he saw Laura Durham sitting on the side of his bed, in a loose robe or gown, putting* n her shoes and stockings. He did not know when she came into the room, and did not see her in the bed, but inferred find believed from the circumstances, that she slept with the defendant. Laura Durham, was the cook and house servant of defendant’s father, who was, at the time, an invalid and confined to his room. She waited on the table; did not eat at it with the family. She did not act as-if she was the defendant’s wife, nor was she so regarded by his-acquaintances.

The defendant is a white man, and she a colored woman ; and they were never married.

James Hicks, testified: That in 1876 (the indictment was found at the September Term of that year), he was in the employment of the defendant’s father, as a laborer on his farm, in the Richwoods, and he slept in a large room, in which were three beds, and in which room the defendant also slept. That' one night Laura Durham came there from Lonoke, and she and the defendant slept together in the same bed, and in the room in -which witness slept. Laura Durham was for awhile employed by the defendant’s father to cook, and she occupied a room some hfty or sixty yards from his house. While she staid in that room, the defendant slept but seldom in the room with the witness. Their demeanor towards each other, was not like that between the defendant and the other servants on the place. They acted like husband and wife. He had seen him help her on her horse, and had seen them take horse-back rides together.

Carroll Hallum, testified: That- he rented land from the defendant’s father in 1876, and lived on it within 300 yards of his house. He had often seen the defendant and Laura Durham, whilst he lived there and before the finding of the indictment, walking together, through the farm. Had seen him holding his umbrella over her, and had often seen them walking arm in arm. Had seen him help her on her horse, and put her foot in the stirrup. On several occasions, they had ridden together until within a short distance of Lonoke, when he would spur up his horse on ahead and ride into town by himself, to avoid the suspicion of having been riding with her; and on one occasion, though each had a horse when they went there, they returned from Lonoke on the same horse, and had seen her riding behind him on his horse about the farm.

The defendant’s father drove her off the place, on account of her conduct with the defendant, and the defendant for awhile boarded her at Todd Dillaha’s, who lived on his farm, and after-wards at Lonoke. Whilst she was at Todd Dillaha’s, he often saw them together then; and on two occasions, early in the morning, he saw them in bed together. After the death of his father, he brought her back to his house, and kept her there.

J. E. Burk, testified: That he once saw the defendant and Laura Durham in a caboose car, attached to a freight train, going to Little Bock. They took the car at Lonoke. They did not sit on the- same seat, or pay any attention to each other. The car was crowded. They returned in a day or so. He frequently visited the defendant at his father’s house, in the Bichwoods, whilst Laura Durham was a servant there, but never saw anything wrong or improper between them.

Jesse Miller, testified : That some time in 1876, and before the finding of the indictment, the defendant told him he would be responsible for the rent of a house in the town of Lonoke, that Laura Durham was living in, to the amount of $20, saying at the time, that he owed her so much.

And H. G. Legate testified : That he, on one time, saw the defendant at Laura Durham’s house, in Lonoke. He had no coat or vest on, and seemed to have been just washing his face. It' was in the day time and in the summer. He did not see her. The defendant was at that time living in the Bichwoods, some ten miles from Lonoke.

Perhaps it should be stated, that Todd Dillaha testified on behalf of the defendant, that he never boarded Laura Durham at his house, and that they never slept together there.

Cohabiting is an essential element in the offense charged in the indictment-. The language of the statute, upon which it is found, is: “ If any man and woman shall cohabit together as husband and wife, without being married, each of them shall be deemed guilty of a misdemeanor, and shall upon the first conviction be fined,” etc. Sec. 1320, Gantt’s Digest.

Bouvier, in his Law Dictionary, gives this definition of the word cohabit; “To live together in the same house, claiming to be married,” and the definitipn given in Burrill’s Law Dictionary, is : “To live together as husband and wife; to live together at bed and board; to live together as in the same house.” And, "Webster, defines it thus: “First — To dwell with; to inhabit or reside in company, or in the same place or country. Second — To dwell or live together as husband and wife.”

The sense in which the word is used in the statute, is evidently that of living or dwelling together in the same house. In Crouse v. The State, 16 Ark., 566, the indictment charged that the defendant “unlawfully and wickedly did bed to, and live with one Johnson Kenedy;” it was held bad because it did not allege that the parties lived together as husband and wife. In Indiana, where they have a statute which declares that “ every person who shall live in open and notorious adultery or fornication, shall be fined,” etc.,1' it was held 'that the offense consisted in open and notorious cohabitation; and in order to make out the offense, there must be a living together. The State v. Gartrell, 14 Ind., 280; Wright v. The State, 5 Blackf., 358; and in Illinois in a case where the parties were indicted for living together in an open state of fornication, as in the cases in Indiana, the court said : “ In order to constitute this crime, the parties must dwell together openly and notoriously, upon terms as if conjugal relations existed between them. In other words, they must cohabit together.”

Since the case of Crouse v. The State, the legislature has so far changed the language, if not the meaning of the statute,-as to substitute the word cohabit for live. Act April 12th, 1869.

We do not think it necessary, that the parties should claim to be husband and wife; if they live together in the same house, in like manner as respects bed and board as marks the intercourse between hnsband and wife, they, in the sense and meaning of the statute, cohabit as husband and wife. The law seeks not alone to prevent the false assumption of the marriage relation, and to prohibit the public scandal and disgrace of such immoral connections; but also to preserve and promote the institution of marriage, upon which the best interests, and indeed the existence, of society depend. We do not, however, intend to express any opinion as to'the objection raised by the defendant’s counsel, that the parties, one being of the white and the other of the colored race, could not lawfully marry with each other.

The evidence fails to show, that the parties lived or cohabited together.

No such inference from the facts, testified to by the witness Hallum, that the. defendant after the death of his father, took the woman back to his house and kept her there, can be drawn, as that they lived, after her return, together in the same house, and deported themselves towards each other as husband and wife, against the presumption which the law raises, in favor of the defendant’s innocence. 1 Green Ev., secs. 34, 35.

The verdict of the jury is not sustained by the evidence; the judgment must therefore be reversed, and the cause- remanded to the court below, that the defendant may have a new trial.


author: English, Ch. J.:

text:
    Nelson vs. The State.
    1. Evidence: Admissibility of.

    Oral evidence is admissible to prove -what a witness testified at a .coroner’s inquest, if his testimony was not reduced to writing.
    2. --: Materiality in perjury.

    The materiality of testimony alleged to be perjury, must be established by evidence and not left to presumption or inference. And when there is no dispute about the facts, its materiality is a question of law for the court to decide, and not of fact for the decision of the j ury.

      3. Peb.tujry:
    To constitute perjury the false oath must b9 taken wilfully and corruptly.
    4. Same: Indictment,. •

    The indictment for perjury must allege the crime to have been committed feloniously.
    • APPEAL from Drew Circuit Court.
    Hon. Theodoric F. Sorrells, Circuit Judge.

      Slemons, for appellant.

      Attorney General, contra.

   English, Ch. J.:

Elias Nelson was indicted for perjury in the 'Circuit Court of Drew County, the indictment charging the offense in the manner following:

Said Elias Nelson, in the county aforesaid, on or about the 9th day of August, 1876, did, on his examination as a witness, duly sworn by R. C. Knox, a duly commissioned and acting justice of the peace, in and for Clear Creek Township in said county and State, to testify the truth, the whole truth and nothing but the truth, on an examination before a jury of inquest over the dead body of one Adam Pippin, in said county, and before said R. C. Knox, a justice of the peace as aforesaid, which justice of the peace had authority to administer such oath, falsely and corruptly testify that one Henry Harris was at his (the said Elias Nelson’s) house on Wednesday evening, August 9th, 1876, that he'ate supper there at his house, that he,-the said Henry Harris, was there from that time until bedtime, and then went to bed there, the matters so testified being material in this, that he swore Henry Harris was at his (said Elias Nelson’s) house, when the said Henry Harris at the said time was not at said Elias Nelson’s house, and the testimony being wilfully and corruptly false, contrary to the statute and against the peace and dignity of the State,” etc.

On the trial, R. C. Knox, witness for the State, testified, that he was a justice of the peace.' That on the 10th of August, 1876, he held an inquest over the dead body of Adam Pippin; had a regular jury empanelled and acted as coroner. The prisoner, Elias Nelson, was examined as a witness at the inquest, and swore .that Henry Harris ate supper at his house on the evening of the 9th of August, was there at sundown, at bed time, and staid there all night. That they ate supper about dark, and went to bed about 8 or 9 o’clock, and that Henry Harris was there at the times above stated. The inquest was held in Drew County.

Defendant objected to oral testimony as to what he swore at the inquest.

The State then proved that no record of the testimony before the coroner’s jury was kept, and the court admitted oral testimony and defendant excepted.

Neely King, witness for the State, testified that he was on the jury that held the inquest. That defendant was sworn as a witness, and stated that Henry Harris was at his house at sundown, and ate supper there on the 9th of August, 1876, and went to bed and staid there all night. That they ate supper between sundown and dark.

Evi Pippin, witness for the State, testified that she was at defendant’s house on the evening and night of August 9th, 1876, there at sundown, at dark, ate supper there, and went to bed there; and that Henry Harris was not there at sundown, did not eat supper there, was not there at dark, nor at bed time, but came there late in the night, and staid there the balance of the night.

Andrew McNeely, witness for the State, testified, that he lived at defendant’s on the 9th of August, 1876. Not in the same house, but in the yard. Was at his house at sundown, at dark and at supper time, and Henry Harris was not there at bed time, or at any of the times above stated.

The above was all the evidence introduced on the trial:

On behalf of the 'State, the court instructed the jury as follows :

“ First. — Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any court, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths.

“Second. — If the jury believe from the evidence that the defendant Elias Nelson swore falsely to a material fact, as charged in the indictment, they must find him guilty as charged, and assess his punishment at not less than five nor more than fifteen years in the State penitentiary.”

The defendant moved the court to give the following instructions :

“ First. — Under the testimony in the case it does not appear that the statements made by the defendant before the coroner were material, and the jury must acquit.

“ Second. — It was not material where Henry Harris was at supper time on the 9th day of August, 1876, and a false statement as to this, is not sufficient to convict the defendant.

“Third. — The defendant is entitled to the benefit of all reasonable doubts.”

The court gave the third, refused the second, and refused to give the first instruction as asked, but modified it to read as follows:

Under the testimony in this case, if it does not appear from the testimony, that the statements made by the defendant before the coroner were material, then the jury must acquit.

After the jury had been out for some time, they returned into court, and announced that they could not agree, and being asked by the court as to the difficulty, the foreman stated that it was as to the materiality of the testimony (of defendant before the coroner).

The court then, by consent of counsel, read to the jury sec. 1415 of Gantt’s Digest. [The first instruction given by the court at the instance of the State, and copied above, is in the language of this section of the Digest.]

After reading this section, the court remarked to the j ury that: “A man can be convicted for swearing falsely before a coroner as well as before any other officer, if the proof justifies it.”

The jury again retired, and returned a verdict. finding the defendant guilty as charged in the indictment, and fixed his punishment at imprisonment in the penitentiary for five years.

He filed motions for a new trial and in arrest of judgment, which were overruled, and he took a bill of exceptions, setting out the evidence, instructions, etc.

He was sentenced in accordance with the verdict, and prayed an appeal, which was allowed by one of the judges of this court.

I. In the absence of the coroner, or if he reside more than twenty miles from the place where any person is found dead, etc., an inquisition may be taken by the nearest justice of the peace, who is invested with full power and authority to do and perform all things required of a coroner. Gantt’s Dig., sec. 907.

The coroner has power to hold inquests over dead bodies, empanel juries, swear and examine witnesses, inquire into the'cause and manner of death, cause suspected persons to be arrested, inquire'as to their guilt, make committals, etc. Gantt’s Dig., ch. 30.

The testimony of each witness, examined at such inquest, is required to be reduced to writing, if material, read to and signed by the witness. Sec. 885-6.

It seems that the testimony given by the appellant before the justice of the peace, who acted as coroner in holding the inquest over the dead body of Adam Pippin, was not reduced to writing. The court below did not therefore err in admitting oral evidence to prove what he swore at the inquest. It was the best evidence that could be produced. 3 Arch. Cr. Prac. and Plea., 603.

II. The object of the coroner’s inquest was no doubt to ascertain when, where and by what means Adam Pippin came to his death, whether he died a natural death, or by some criminal agency ; and if any person was suspected or arrested for criminal agency in his death, fto enquire as to the guilt or innocence of such person.

It was proven by the State, on the trial, that an inquest 'was held over his dead body, in Drew County, on the 10th of August, 1876, and this is all that was proven in relation to his death.

It was not proven that Henry Harris was arrested for or suspected of any criminal connection with the death of Pippin, or that his guilt or innocence was in any manner the subject of inquiry before the coroner’s inquest.

It was proven that appellant swore at the inquest, that Henry Harris was at his house on the evening of the 9th of August, 1876, ate supper, and remained there during the night, and there was evidence conducing to prove that this statement was false, but there was no evidence to prove that the whereabouts of Henry Harris during that particular evening and night, was material to any matter that was the proper subject of inquiry by the coroner or his jury.

The materiality of the testimony on which perjury is assigned, must be established by evidence, and cannot be left to presumption or inference. The State v. Aikins, 32 Iowa, 403.

Proof that the testimony on which the perjury is assigned in this case, was admitted before the coroner’s inquest, was not sufficient to warrant the jury to infer that such testimony was material. It often happens that immaterial testimony is admitted on trials and inquests. Commonwealth v. Pollard, 12 Metcalf, 225; 3 Wharton Cr. L., sec. 2232, (6th ed.)

We can imagine a state of case made before the coroner in which appellant’s testimony might have been material. If Henry Harris was suspected of killing Adam Pippin, and the coroner’s jury was making inquiry as to the matter, and it was. proven that Pippin was killed on the evening, or early in the night of the 9th of August, 1876, then testimony that Henry Harris was at the house of appellant at the time Pippin was. killed, would have been material to exculpate Harris.

But we are not at liberty, neither was the jury on the trial below, to imagine such a case made before a coroner, in order to. show the materiality of appellant’s testimony and warrant his conviction of perjury.

III. The first instruction given to the jury, at the instance of the State, is in the language of the statute defining perjury,, and of course is unobjectionable.

The second, when taken in connection with the first, is well enough; but, as a separate proposition, it is not good law. A man may swear falsely to a material fact,” and not be guilty of perjury. The false oath must be taken wilfully and corruptly. Green v. State, 41 Ala., 422. 1 Bishop Cr. L., sec. 233.

The refusal of the second instruction moved for appellant, and the modification made to the first, indicate that the court below was of the opinion that whether the testimony proven to have-been given by appellant before the coroner’s inquest was material,, was a question of fact for the jury, and not of law for the court to determine.

When there is no dispute about the facts sworn to, the question whether the testimony on which perjury is assigned is material, is a question of law to be decided by the court, and not of fact to be passed on by the jury. Power v. Price, 16 Wend., 450; 12 Id., 500; Stinman v. McWilliams, 6 Barr., 177.

If the jury were in doubt whether perjury might be assigned upon a false oath taken before a coroner, as well as any other officer, the remark made to them by the court after reading to them the statute defining perjury, was not objectionable.

IV. As to the sufficiency of the indictment:

Perjury is a felony, and the crime is not charged to have been feloniously committed. Milan v. State, 24 Ark., 348; Edwards v. State, 25 Ark., 446; Mott v. State, 29 Ark., 149.

The indictment sets out the matter of the false oath, but does not directly allege that it was material to the issue, or to any matter that was the subject of inquiry by the coroner’s inquest.

Either from the facts alleged, or by direct averment, the evidence, which is charged as having been false, must appear to have been material to the issue. But it is sufficient that this appears in one of these modes; it need not be made so to appear by both, 2 Bishop Cr. Pro., sec. 854.

It does not appear from the facts alleged that the testimony of appellant before the inquest was material. The indictment undertook to show how it was material, but failed in the effort, thus : The matters so testified being material in this, that he swore Henry Harris was at his (said Elias Nelson’s) house, when the said Henry Harris, at said times, was not at said Elias Nelson’s house.” This was a non sequiter. It did not follow that it was material because false.

The State failed to prove the materiality of the testimony on which the perjury was assigned, and the indictment was not good in substance.

The judgment must be reversed and the cause remanded, and appellant may be held for a new indictment, if the State desires to prosecute further.


author: English, Ce. J.:

text:
    Floyd vs. The State.
    Fine: Payment of.

    Neither a justice of the peace, nor constable, nor any other person or officer, has any legal authority to take a mortgage for a fine adjudged to the State in a criminal prosecution, and treat the judgment as “ paid or collected;” and such mortgage is not such payment or satisfaction of the judgment of the justice, as will prevent an appeal from it by defendant.
    APPEAL from Howard County.
    Hon. L. J. Joyner, Circuit Judge.

      Attorney general for the State.
   English, Ce. J.:

This case was determined in the Circuit Court of Howard County, on appeal from the j'udgment of a justice of the peace.

It appears from the transcript of the justice filed in the Circuit Court, that on the 16th of October, 1876, George T. Epperson, by affidavit, charged John Floyd, before C. M. Stanford, a justice of the peace of Muddy Fork Township, Howard County, with the offense of wilfully and maliciously wounding a white bull, the property of affiant. Whereupon the justice issued a warrant in the name of the State, to H. P. Epperson, constable, for the arrest of Floyd. He was on the same day arrested, taken before the justice, tried by a jury, found guilty, his punishment assessed at a fine of twenty dollars, and the damage of Epperson, the owner of the animal, assessed at $50: and the justice rendered the following judgment upon the verdict of the jury.

“It is therefore adjudged by the court that the State of Arkansas have and recover of the defendant, John Floyd, the sum of twenty dollars, the fine assessed : and that the State of Arkansas, for the use of George T. Epperson-, have and recover of the defendant, John Floyd, the sum of one hundred and fifty dollars, the three fold amount of- damage assessed by the jury in favor of said Epperson, the owner of the animal; also all the costs in this behalf expended.”

Below the judgment, the costs are taxed in items, aggregating $13.70: then follows this entry :

“This judgment for costs is paid to constable in full: The fine and damages are settled by mortgage to the amount ,of $57, mortgage being given in favor of R. G. Shaver: The remainder of the damages is marked paid by order of George T. Epperson, the party whose animal was damaged.” •

(Signed) “C. M. Stanfoed, J. P.”

After the above entry, the defendant took an appeal to the Circuit Court, executing a stay bond, with sureties. He appeared at the return term, was ordered to stand upon his appeal bond for his appearance at the next term, the witnesses for the State were recognized, and the cause continued.

At the next term (September, 1877,) the prosecuting attorney moved to dismiss the appeal, on the ground that the defendant had paid and satisfied the judgment prior to the taking of the appeal.

The motion came on to be heard, the record states, and was argued by counsel, and the court being sufficiently advised as to the law relating thereto, etc., and being of the opinion that the ground of the motion was well taken, sustained the same, and dismissed the appeal at the defendant’s costs. The defendant excepted, and appealed to this court.

There is no bill of exceptions, and no indication in the record •entries that any evidence was introduced on the hearing of the motion. The court below seems to have treated the entry made by the justice of the peace upon his docket, above copied, as sufficient evidence that the defendant had paid and satisfied the judgment before he took the appeal.

Section 2103, Gantt’s Digest, (criminal procedure) provides that: “No appeals shall be taken from the judgment of a Justice’s Court after it has been paid or collected, nor after sixty days from the rendition of the judgment.”

The judgment was in favor of the State for a fine of $20, and costs, and in favor of Epperson, the owner of the animal, for $150, damages. Gantt’s Digest, seos. 1380-1.

It seems that before the appeal the costs were paid : the fine and damages settled by mortgage given to R. G. Shaver, to the amount of $57, and the remainder of the damage awarded to Epperson, marked paid by his direction.

It appears that in the $57, secured by the mortgage, were included the fine of $20, adjudged to the State, and $37 of the damage adjudged to Epperson.

Who Shaver is, or in what capacity he acted in taking the mortgage, does not appear. But neither the constable, nor the justice of the peace, nor Shaver, no matter what office he held, had any legal authority to take a mortgage for the fine adjudged to the State in a criminal prosecution, and treat the judgment as “paid or collected.” Epperson was at liberty to accept a mortgage, note', or to remit the whole or any part of the sum adjudged to him, for the damage done to his property by appellant. It was a compensation for a personal wrong which he could settle as he pleased. Baldwin et al. v. Scoggin, use, etc., 15 Ark., 435.

There is no showing in the transcript before us that the fine of $20, adjudged to the State against the appellant for the public offense which he was charged with committing, has been “paid or collected” before he took an appeal from the judgment of the justice, and as to that he had the right of appeal. It follows that the court erred in dismissing the appeal.

The judgment must be reversed, and the cause remanded for further proceedings.


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    The State of Arkansas vs. Jourdan.
    1. Indictment: Joinder of distinct larcenies.

    Under the statute, separate and distinct larcenies cannot be joined in the same indictment, and where more than one offense is charged in an indictment, the prosecuting attorney may on -demurrer, be required to elect for which he will prosecute.
    2. --:
    Where two or more counts are used in order to charge the ownership of the property in different persons, so as to meet contingencies of the evidence, as to the ownership, the prosecuting attorney should state that fact to the court on the demurrer, and make it appear of record that only one offense was intended. But under sec. 1786, Gantt’s Dig., it seems to he unnecessary to add a second count to obviate uncertainty in the evidence, as to the name of the party injured.
    APPEAL from Sharp Circuit Court.
    Hon. William Byers, Circuit Judge.

      Attorney General for the State.
   English, Ch. J.:

The appellee, Doctor Jourdan, was indicted in the Circuit Court of Sharp County, for larceny. There were two counts in the indictment; the first count charging, in substance :

That the defendant, on the 10th of November, 1876, a.t, etc.,, one steer of the value of $15, and one other steer of the value of $15, of the property of one M. G. Wainright, then and there being found, feloniously did steal, take and carry away, etc.

The second count charged :

That the said defendant, on the 10th of November, 1876, at etc., one ox of the value of $15, and one other ox of the value of $15, the property of one J. B. Atkinson, then and there being found, feloniously did steal, take and carry away, etc.

The defendant demurred to the indictment, on the ground that it charged him with’ more than one offense ; the court sustained the demurrer, with leave to the State to elect on which count of the indictment she would prosecute; the prosecuting attorney declined to make such election, whereupon the court gave judgment dismissing the cause and discharging the' defendant; and the State appealed.

Under the statute separate and distinct larcenies cannot be joined in the same indictment. Gantt’s Dig., sec. 1783.

Where the indictment improperly charges more than one offense, on demurrer, the prosecuting attorney may be required to elect upon which count, or for which of the offenses charged, the State will prosecute. Ib., secs. 1837, 1840 ; Baker v. State, 4 Ark., 56.

It is submitted by the Attorney Genera.1 that but one offense is charged in this indictment; that steers in the first count, and oxen in the second, are synonymous; and that the ownership of the animals was alleged to be in different persons, in the two counts, as well it might be, to meet any doubt that might arise on the evidence as to the ownership.

In the first count appellee is charged with stealing- two steers, the property of M. G. Wainwright; in the second, with stealing two oxen, the property of J. B. Atkinson.

It is true that steer and ox have about the same meaning. See Webster. But we do not know, there being nothing in the record to show it, that two counts were inserted in the indictment for the purpose of meeting uncertainty in the evidence as to the ownership of the animals. Two larcenies are apparently charged in the same indictment — larceny of the steers of Wain-right-, and larceny of the oxen of Atkinson. If the prosecuting attorney, in- drafting the indictment intended in fact, to charge but one offense, and inserted the second count to obviate uncertainty in the evidence as to the ownership of the animals, he should have stated that fact to the court, oh the interposing of the demurrer, and made it appear of record.

It seems, however, that under a provision of the Criminal Code, an error in the indictment as to the name of the party injured, is not fatal on the trial. Gantt’s Big., sec. 1786. Hence, it seems to be unnecessary now to add a second count, to obviate uncertainty in the evidence as to the name of the party injured.

Affirmed.


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    Scoggins vs. The State.
    1» Bigamy: Limitation applicable to.

    The offense of bigamy is barred by the lapse of three years from the date of the bigamous marriage.
    2.--: Defined. \
    It is the marrying by a person who has a husband or wife living, that constitutes the offense of bigamy under our statute, and the offense is complete upon the second marriage; subsequent cohabitation does not enter into it, or render if a continuing offense.
    3. Indictment: Inregard to allegations as to time when the offense charged is within the statute of limitations.

    See the opinion.
    4. Marriage: By cohabitation under special statute.

    The provisions of the act of February 6th, 1867, providing that negroes and mulattoes then cohabiting as husband and wife, and recognizing that relation, should be deemed lawfully married, from the passage of the act, with the rights and obligations appertaining to the marital relation, was. valid, and of its own force created that relation between such persons as were within its provisions, without the necessity of a marriage ceremony.
    5. —:--: Evidence of by acts and admissions of the parties.

    Evidence of cohabitation as husband and wife at and after the passage of the act, and the admissions of the parties, are competent to establish a marriage under the act.
    APPEAL from Howard Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Attorney General for the State.
   English, Ch. J.:

On the 28th of September, 1876, Peter Scoggin was indicted for bigamy in the Circuit Court of Howard County, as follows:

The Grand Jury of Howard County, in the name, etc., accuse Peter Scoggin of the crime of bigamy, committed as follows, to-wit: That said Peter Scoggin, in the County of Howard, on or about the 15th day of July, A. JD. 1868, did unlawfully and feloniously marry one Mary Chandler, and take her to wife, and from the day and year aforesaid, to the finding of this bill of indictment, did and has continued to live and cohabit as man and wife with the aforesaid Mary Chandler, in the County of Howard, he, the said Peter Scoggin, on the aforesaid 15th day of July, A. D. 1868, and ever since that day having a wife living, to-wit: one Sophia Scoggin ; to the great injury of the public morals, and contrary to the statute, etc., and against the peace, etc.”

The defendent demurred to the indictment on the grounds that it appeared from its face that the offense charged was not capital, and that the indictment was not found, nor any prosecution commenced for the offence, within three years from the date of its commission.

The court overruled the demurrer. The defendant filed a motion to quash the indictment on the same ground, which was also overruled.

Defendant then pleaded not guilty, and was put upon trial.

James Norwood, witness for the State, testified, in substance, that he had known defendant ever since the fall or winter of 1866. Witness moved him to his farm in January, 1867, and defendant lived with him during that year. When the agreement was made for defendant to live with him, witness asked him what family he had, and he said a wife and one child. When he moved to the place of witness, he brought a woman and one child with him, and he and the woman lived together in the same cabin while he staid there; they cohabited as man and wife. Witness took the woman to be of African descent; she was yellow. In 1875, witness was summoned by defendant as a witness in his behalf, on the hearing of a habeas corpus case before Judge Joyner, at Mineral Springs, to prove that defendant and the yellow woman referred to, whom witness called his first wife, were living together as man and wife in February, 1867. It appeared that defendant had taken the child away from his first wife, and she and Joe Weston, her husband at the time of the habeas corpus suit, were suing defendant for the child. At the trial before Judge Joyner, defendant swore he and the woman Sophia Weston, were Jiving together as man and wife on the 6th of February, 1867, and that they parted in the fall of that year, and she, Sophia, went off and married Joe Weston; and that about a year after they parted, defendant was married to his present' wife, by parson Northam, in Hempstead County, and that he was then living with his present wife, and had lived with her in Hempstead and Howard Counties up to that time. Did not know the name of defendant’s second wife, the woman he now lives with.

On cross-examination, witness stated that -at the time defendant lived on' his place, he and his first wife, Sophia, lived together in one end of a double log cabin, etc. Sophia is a yellow woman and her hair kinky. Thought defendant and Sophia were both negroes ; she is a mulatto. Knew nothing of defendant’s second marriage, except what he had heard him say.

To the proof of the admissions of defendant* to this witness, and of what he swore in the habeas corpus case, about his first wife, second marriage, etc., defendant objected, and the court overruled the objection.

R. G. Shaver, witness for the State, testified in substance, that he was an attorney-at-law, and prosecuted the application for habeas corpus before Judge Joyner, Judge for the Eight Judicial Circuit, at Mineral Springs, in October, 1875, for Joe Weston and Sophia Weston against defendant, for the custody of Sophia’s child. (Here the witness produced the original response of defendant in that case.) That defendant testified as a witness in his own behalf at the hearing of the application, and swore that he was living with Sophia as his wife at the time of the passage of the act of February, 1867, and that he lived with her. for eight to ten months after that time, and that he claimed the benefit of said act. He also swore he was married to his second wife some time in 1868, and that he had lived with' her to the time of that trial, which was in October, 1875.

The defendant objected to the admission of so much of the testimony of this witness as relates to what he swore on the habeas corpus trial about his second marriage, and the court overruled the objection.

Against the objection of the defendant, the court permitted the State to read in evidence his response in the habeas corpus case, produced by this witness.

It is subscribed (by his mark) and sworn to 25th October, 1875, before the Clerk of Howard County, and states :

“First — That respondent is the lawful father of said infant Elizabeth, who is a minor of about the age of ten years, and as such parent is entitled by law to the custody of the person of said minor until she arrives at the age of majority.

l£Second — That ^aid infant is the legitimate child of respondent, and said petitioner, Sophia Weston, who has since the birth of said infant intermarried with her co-petitioner, Joseph Weston; and both said mother and step-father being in indigent circumstances) and unable by reason of their poverty to properly care for, support and educate said infant, respondent, as in duty bound, has taken upon himself the custody of her person, and her support and education, etc.”

The State then offered .to introduce the record book of marriage certificates of Sevier County, to prove that defendant and Mary Chandler were married on the 15th July, 1868, as charged in the indictment, which fact was admitted by defendant without proof.

Thereupon it was agreed by the parties (State and defendant), that for the purposes of this case, it might be taken and considered proven to the jury, that defendant and Mary Chandler were married in due form of law in Howard County on the 15th day of July, 1868, and that they have continued to reside and cohabit together as man and wife in said county from that date up to the finding of the indictment herein; and that defendant and Sophia Weston were never lawfully married other than by the force and effect of the act of the General Assembly, approved February 6th, 1867'j but defendant objected to Siyxl evidence being considered by the jury, or introduced, on the ground that the same was irrelevant, incompetent and inadmissible,- because the State had failed to prove a legal former marriage, and because proof of cohabitation with the second wife was irrelevant on a trial for bigamy, the offense being complete without such cohabitation ; which objection -was overruled by the court, and said evidence, or agreed state of facts, allowed to be introduced, and considered by the jury, etc.

The State offering no further evidence, and the defendant introducing none, the court, at the instance of the State, and against the objection of defendant, instructed the jury as follow-s.

“First — If the jury believe from the evidence, beyond a reasonable doubt, that at the passage of the act of the General Assembly of February 6th, 1867, entitled cAn act- to declare the rights of persons of African descentthe defendant and one Sophia Scoggin were then cohabiting as husband and wife, and recognized each other as such ; and that afterwards, on the 15th July, 1868, he married one Mary Chandler, and continued to live and cohabit as husband and wife with the said Mary to the date of the finding of the indictment, or to any time within three years prior thereto, and she, the said Sophia, being then and there living, they may find him guilty.”

The defendant moved the following instructions, which the court refused :

“Nw'sf — That in indictments for bigamy, the fact of the first • marriage is material, and necessary to be proven, in order to support a conviction — and the confession of the' defendant, and proof of general reputation and cohabitation are not, in themselves sufficient to prove the marriage, but must be supported by some direct evidence of the fact.

“Second — That the legislature cannot, by mere legislative action, create a valid civil contract between two individuals ; and if the jury believe from the evidence that defendant and Sophia Weston, were never married by any officer or person authorized by law to perform the ceremony of marriage, but were simjfiy . cohabiting together as man and wife at the time of the passage of the act of the General Assembly, approved February 6th, 1867, they will acquit.

“Third — That ¡unless the jury believe from the evidence that the second marriage with Mary Chandler took place within three years next before the finding of the indictment herein, they will acquit.”

The jury found the defendant guilty as charged in the indictment, and fixed his punishment at three years imprisonment in the penitentiary. He filed motions for a new trial and in arrest of judgment, which were overruled, and he took a bill of exceptions, setting out the evidence, points reserved, and instructions of the court, etc.

He was sentenced in accordance with the verdict, and prayed an appeal, which was allowed by one of the judges of this court.

I. Passing over, for the present, any question relating to the first marriage, we will consider whether the prosecution for the second marriage was barred by the statute of limitation at the time the indictment was found.

There is no limitation to prosecutions for capital offenses.

No person can be prosecuted, tried and punished for any other felony, unless an indictment be found within three years after the commission of the offense. Gantt’s Dig., secs. 1663-4.

Bigamy is a penitentiary offense (Gantt’s Dig., sec. 1316), and a felony. Id., 1225.

“ Every person having a wife or husband living, who shall marry any other person, whether married or single, except in the cases specified in the next section, shall be adjudged guilty of bigamy.” Id., sec. 1312.

“Another felonious offense (says Mr. Blackstone, B. 4, p. 163), with regard to the holy state of matrimony, is what some have’ corruptly called bigamy, which properly signifies being twice married, but is more justly denominated polygamy, or having a plurality of wives at once. Such second marriage, living the former husband or wife, is simply void, and a' mere nullity, by the Ecclesiastical Law of England; and yet the legislature has thought it just to make it felony, by reason of its being so great a violation of the public economy and decency of a well-ordered State, etc.”

“Bigamy, in its proper signification, is said, to mean only being twice married, and not having a plurality of wives at once, etc.” 1 Rus. on Cr., p. 186, note (a).

It is the marrying, by a person who has a husband or wife living, that constitutes the offense under the statute above copied. In Patterson v. The State, 2 Iredell Law R., 355, the offender was indicted for bigamy under a similar statute of North Carolina, and on the trial he called the second wife as a witness, and offered to prove by her that his marriage with her had not been consummated by carnal knowledge of her body, and the evidence was rejected. Mr. Justice Gaston, who delivered the opinion of the Supreme Court, on appeal, said: “ "Wo hold that the testimony offered was properly rejected^ because the fact proposed to be established by it was wholly irrelevant. The crime, in the language of o'ur act, was completed, when any person now married, or who shall be hereafter married, doth take to himself or herself another husband or wife, while his or her former wife or husband is still aliveand there can be no question but that this is done, when the parties, before the authorized minister, declare that they there take each other for man and wife. Consensus non concubitus faeit nuptias. Marriage, or the relation of husband and wife, is in law complete, when parties, able to contract and willing to contract, actually have contracted to be man and wife in the forms and with the solemnities required by law. It is marriage; it is this contract, which gives to each right or power over the body of the other,, and renders a subsequent cohabitation lawful. And it is the abuse of this formal and solemn contract, by entering into it a second time, when a former husband or wife is yet living, which the law forbids, because of its outrage itpon public decency, its violation of the public economy, as well as its tendency to cheat one into a surrender of the person under the appearance of right. A man takes a wife, lawfully, when the contract is lawfully made. He takes a wife unlawfully, when the contract is • unlawfully made, and this unlawful contract the law punishes.”

See also 3 Wharton Cr. L. (6th ed.), sec. 2635.

The indictment charged the criminal marriage in this case to have occured on or about the 15th of July, 1868, and it was admitted by appellant, on the trial, that he and Mary Chandler, the second wife, were married in due form of law, on that day. The indictment was found on the 28th of September, 1876, more than three years after the time of the marriage, and hence the prosecution for that offense was barred by the statute of limitations.

The State attempted to avoid the statute bar, however, by alleging in the indictment, and proving, that appellant and Mary Chandler, continued to cohabit together, as husband and wife, from the time of their marriage down to the time of the finding of the indictment, the former wife all the while living. ,

In some of the states, cohabiting together after the unlawful marriage, is made by statute a distinct offense. Thus in Massachusetts : “If any person, who has a former husband or'wife living, shall marry another person, or shall continue to cohabit with such second husband or wife, in this State, he or she shall, except etc., be deemed guilty of the crime of. polygamy, etc.” ■ 3 Wharton, ch. 9, Bigamy.

Commonwealth v. Bradley, 2 Cushing, 553, was an indictment for cohabiting after the unlawful marriage under this statute. The first marriage was in New Hampshire, the second and criminal marriage took place in Connecticut, and the indictment, after alleging the two marriages, charged that defendant did cohabit and continue to cohabit with the second wife at Lynn, Massachusetts, for a long space of time, to-wit, for the space of six months, his former wife being then living ; and the indictment Avas held good.

So in Virginia: “Any person, being married, who during the life of the former husband or wife, shall marry another person /in this State, or, if the marriage with such other person take place out of the State, shall thereafter cohabit with such other person in this State, shall be confined in the penitentiary, etc." 3 Wharton, sec. 2623, Bigamy.

So in Minnesota: If any person, who has a former husband or wife living, shall marry another person, or shall continue to cohabit with such second husband or wife, he or she shall, except, etc., be deemed guilty of polygamy, etc." Minnesota v. Johnson, 12 Minn., 476, was an indictment for cohabiting after the unlawful marriage. The indictment charged the first marriage to have occurred in New York, the second in Wisconsin, and the cohabitation with the second wife in Winona County, Minnesota, where the indictment was found. The court held that the defendant could not be punished in Minnesota for a bigamous marriage in Wisconsin, but cohabiting with the unlawful wife in Minnesota was an offense against the statute.

Our statute makes the unlawful marriage a crime, but contains no clause making cohabitation subsequent to the marriage an offense.

The New York statute is similar to ours. 3 Wharton, sec. 2618, Bigamy.

In People v. Mosher, 2 Parker Cr. R., 195, the prisoner was indicted for bigamy. The facts alleged in the indictment were that he married a wife in Pennsylvania, and lived with her in that State for years, and left her and went to Canada, and then married another woman, his wife still living in Pennsylvania. After his second marriage in Canada, he came to Orleans County, New York, and resided there. The court held that the laws of New York had no extra territorial force, and that the second marriage in Canada was not therefore an offense against the laws of New York; and that although the marriage was void by the law of the place where it was entered into, the subsequent cohabitation of the parties within the State of New York, .was..,. merely an offense against the good morals, but was not indictable as a crime. That the marriage being void, the parties were living together in a state of adultery, which was not recognized as a crime, punishable by indictment under the laws of New York, etc.

Whether the parties in such cases, may be indicted for illegal cohabitation under sec. 1320, Gantt’s Dig., we have no occasion to decide in this case, appellant being indicted for bigamy.

II. The demurrer to the indictment, the motion to quash, and the motion in arrest of judgment, were all upon the ground that the date of the criminal marriage, as alleged in the indictment, was not within the period of the statute bar, that is, that it appeared from the face of the indictment that the offense was barred.

Under the former practice, the general rule was that the time alleged in the indictment was not material, unless it was an ingredient of the offense. Medlock v. State, 18 Ark., 365. But the time should be laid on a day prior to the finding of the indictment, and within the period of limitations, if any was prescribed by law. 1 Wharton Cr. L. (6 ed.), secs. 274-5; 1 Arch. Cr. P. and P., 84-1; 1 Chit. Cr. L., 223; State v. Magrath, 19 Mo., 678.

By a provision of the Criminal Code:

“The statement in the indictment as to time at which the offense was committed is not material, further than as a statement that it was committed before the time of finding the indictment, except when the time is a material ingredient in the offense.” Gantt’s Dig., sec. 1787.

Under similar acts, it has been held that the indictment need' not allege the offense to have been committed on a day within the period of limitations, though the State must prove it. Thomp son v. State, 25 Ala., 45; Molett v. State, 33 Ala., 411; State v. Stumbo, 26 Mo., 306; McGuire v. State, 37 Ala., 162.

III. As to the first marriage:

The first General Assembly which convened after the close of the civil war, and after the emancipation of slaves, passed acts establishing the civil rights, etc., of persons of color.

By “An act to legalize marriage of persons of color, approved * 20th December, 1866, it was provided: ”

“That the marriages of all persons of color, who now live together as husband and wife, are hereby declared legal, and their children legitimate.”

The second section required magistrates and’ ministers thereafter solennizing the rites of matrimony between persons of color, to certify their marriages for registration. Acts 1866, p. 52.

By sec. 1, of “An act to declare the rights of persons of African descent,” approved February 6th, 1867, it was declared that all persons theretofore known in law this State as slaves or free persons of color, should have the right to make and enforce contracts, to sue and be sued, give evidence, make wills, inherit, purchase and convey real and personal property, and to have equal benefit of the rights of personal security, liberty and property, and of all remedies, etc., enjoyed by white persons, and be subject to the same penal laws, etc.

By sec. 2, all acts to the contrary were repealed, except any statute, etc., respecting marriages of white persons with negroes and mulattoes, etc.

By sec. 3, “That all negroes and mulattoes who are now cohabiting as husband and wife, and recognizing each other as such shall bo deemed lawfully married from' the passage of this act, and shall be subject to all the obligations, and entitled to all the rights appertaining to the marriage relations ; and in all cases, where such persons now are, or have heretofore been, so cohabiting as husband and wife, and may have offspring recognized by them as their own, such offspring shall be deemed in all respects legitimate, as fully as if born in lawful wedlock.”

By sec. 4, future marriages between negroes and mulattoes were to be governed by laws applicable to the whites, but to be registered in separate books. Acts of 1866-7, p. 98.

The General Assembly of 1866, was composed almost exclusively of Southern- men, who were familiar with the habits and usages, and well aware of the limited civil rights, of the colored population during their bondage.

Being an imitative people, they usually observed ceremonies in their marriages süch as were customary among the whites, inviting ministers, civil magistrates,, or other persons ’ familiar with such forms, to marry them. The man and woman, not unfrequently, however, took up with each other, without observing any marriage ceremony, and lived together, and treated eacli -other as husband and wife.

Marriage among them was encouraged by the whites, and respected by humane masters; but the inability of slaves to contract extended to the marriage contract, and hence there was no recognized marriage relation in law between slaves. Cobb on Slavery, sec. 270.

In Louisiana it has been held that a marriage contract between slaves becomes valid for all purposes after their manumission. Id. Girod v. Louis C. Martin, 559; See also Stikes adm’r., v. Swanson et al., 44 Ala., 633.

The power of the legislature to legalize their marriages, as it undertook to do by the above acts, does not admit of a well founded doubt. Cooley Con. Lim., p. 372-3.

It was proven by witness Norwood, that appellant brought the woman, Sophia, to his place as his wife, in January, 1867, having a child by her, and that they lived together, and cohabited as husband and wife during that year. It was also proven that he swore in the habeas corpus case, that he was living with her as his wife at the time of the passage of the act of February, 6th 1867, and continued to live with her from eight to ten months thereafter, and claimed the benefit of said act.

In his response to the writ of habeas corpus, 25th October, 1875, he claimed to be the lawful father of Sophia’s child, then ten years old, and that it was legitimate, etc.

The evidence that the parties were cohabiting as husband and wife at the passage of the act legalizing the marriages of colored people, that they continued to live together as husband and wife after its passage, with the solemn admission of appellant that he claimed the benefit of the act, was sufficient proof, on the part of the State, of the first marriage.

In such case the State could not produce the record of the - first marriage, there being none; could not, perhaps, have produced a witness who was present at the marriage ceremony, because no ceremony may have been observed. See Langtry v. State, 33 Ala., 536; Haden v. Ivey, 51 Ala., 381; 3 Greenleaf Ev., sec. 204; 5 Wharton Cr. L. (6 ed.) sec 2633, and eases cited in note.

But the prosecution for the bigamous marriage charged in the indictment appearing to be barred by the statute of limitations,, the judgment is reversed, and the cause remanded with instructions to the court below to grant appellant a new trial.


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    Buckingham vs. The State.
    Criminal Law: Burden of Proof.

    When the defendant admits the allegations of the indictment, he must, in order to exonerate himself, show such facts as amount to a justification or excuse.

      APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Attorney General, for the State.
   Harrison, J.:

The appellant was indicted for failing, as road-overseer, to keep the roads in his district in good repair, and he was convicted and lined $5. He filed a motion for a new trial, upon the ground that the evidence was not sufficient to warrant the conviction, which was overruled; and the question thus raised, is the only one for our consideration.

The indictment charged the offense in general words, following those of the statute.

Upon the trial, the appointment of the defendant, his acceptance of the same, and the failure to keep the roads in good repair, were admitted by the defendant; and on the part of the State it was admitted, that a part of the road had been changed by the County Court, and the new way, which ran on the section line and through the swamp had never been opened, and that it could be ascertained only by a survey, which the County Court had ordered the county surveyor to make, but which had never been done.

The State having by the admission of the defendant proved, that the roads in his district, had not been kept in repair by him j to exonerate himself, it devolved upon him to show, that they were not out of repair through any fault or negligence of his. This he did not do by showing that a part of the road had been changed, and the new way had never been opened, because the surveyor had failed to make the survey ordered by the County Court. If the want of repairs was only on the part of the- road that had been changed, he should have shown that fact, either by witnesses or restricting his admission, that he had hot kept the roads in repair, to such part. Judgment affirmed.


author: ■ Harrison, J.:

text:
    Lawson vs. The State.
    1. Evidence: Admission of co-conspirator, ate.

    The admission of one of several conspirators, in the absence of the others, is admissible in evidence against them, if made during the progress and in furtherance of the common design, but it is necessary that the State should, first lay the foundation for such evidence by proof of the conspiracy, unless the court in its discretion under peculiar and urgent circumstances, should dispense with the prior proof of the conspiracy, upon the undertaking of the State'to produce it afterwards.
    2,-- — ■: Of previous reputation for truth and morality.

    Evidence of the reputation of a witness for truth and veracity two years prior to the time of the trial, and at a different place, is admissible for the purpose of impeaching him.
    APPEAL from Gross Circuit Court.
    Hon. P. Dunn, Special Judge.

      Attorney General, for the State.
   ■ Harrison, J.:

The appellant, Sam. Lawson, was indicted with one Andy Lawson, for grand larceny.

The property charged to have been stolen, were two hogs belonging to William R. Sanders, of the value of §15, each. He was tried separately, and convicted.

Nancy Hunt, a witness for the State, testified : That the defendant and Andy Lawson came to her husband’s house in the evening, shortly after dark, and called him out; they had some conversation which she did not hear, after which he returned .into the house, and asked her if she was afraid to stay by herself awhile. She told him she was not afraid, and inquired where he was going; he replied, he was going with those boys to get some meat. She told him, he would get into trouble, and entreated him not to go. He would go; and in about a half an hour they returned, bringing with them two hogs, which she heard Andy Lawson say, in the presence of the defendant, belonged to William R. Sanders, and which she of her personal knowledge knew to be his. This was in Cross County, and some time in 1875. Witness had testified before the examining court.

The defendant, at the time and before she had testified to what subsequently occurred, objected to her stating anything said to her by her husband, in his absence; but the court overruled the objection, and permitted her statement of what was so said to go the jury.

The declarations of one of several persons, who have con-' spired to commit an unlawful act, if made during the pendency of such enterprise, and in furtherance of its object, are admissible as evidence against the others, though made in their absence. Ordinarily, however, a foundation must first be laid by proof sufficient to establish prima facia, or proper to be laid before the jury, as tending to establish it, the fact of conspiracy between the parties.

Sometimes, however, in the discretion of the court, under particular and urgent circumstances, such declarations are admitted to go to the jury, before sufficient proof is given of the conspiracy; the State undertaking to furnish such proof afterward. Green, on Ev., sec. 111. The witness had stated, that the defendant and Andy Lawson had come to her husband’s house after dark, and called her husband out, and had a conversation with him. If this was not a sufficient foundation for the admission of his declaration- — in regard to which we express no opinion — her subsequent testimony as to what afterwards occurred, which if it had preceded her statement about what he told her, would have been a good foundation for their admission, made the competency of the declarations as evidence apparent, and the defendant could not possibly have been prejudiced by the admission of them before such foundation was laid.

The defendant called G. W. Lane, Henry Roberts and J. A. Winchell, who severally testified, that they were acquainted with the witness, Nancy Hunt, and being asked if they knew her reputation for truth and morality, answered that they did not know what it was at that time, she having removed from the neighborhood, where they resided, about two years before. They were then asked, what it was in the community she removed from at the time she left it, but the prosecuting attorney objected to the question, and the court refused to permit the witnesses to answer it.

By an express provision of the statute, sec. 2524, Gantt’s Digest, a witness may be impeached by evidence, that his general reputation for truth or morality is so bad as to render him unworthy of belief. Majors v. The State, 29 Ark., 112.

In the case of Snow v. Grace. 29 Ark., 131, it was decided, that witness’ reputation for truth in the community, where he resided seven years before, whilst living there was admissible. The opinion in that case contains a very full and elaborate review of the authorities bearing upon the subject. Mr. Special Justice Williams, who delivered it, said: “It will be thus seen, that the authorities are in conflict on this question. It seems to us, however, that the reputation a witness has for truth, is a mere circumstance; which the rules of law allow to be considered by the jury, to aid them in determining the degree of credit to be given the witness, and is purely a question of fact. If so, does not a reputation at some other time than that of testifying, and some other place than that of the then residence, equally tend to shed light upon the question of credit. The light may be dim and flickering on account of remoteness, but is it not still light? The remoteness of time and place are also circumstances and facts to which ordinarily, under proper instructions, the jury will give due weight. If this sort of testimony is to be admitted at all, it would be difficult to draw the line, and say when it, the evidence of reputation, ceases to be fact, and becomes a question of law.” “Doubtless there are cases,” he continued, “ in which the testimony would be too re- ■ mote as to time, and the court in its discretion, might exclude it, as in the case cited from 2 Howard (Teese v. Huntingdon). Its exclusion in that case, rested in the sound discretion of the court, so held.”

In the case of Teese v. Huntingdon, referred to by Judge Williams, the trial took plaee and the witness was called in October, 1857, and he testified, that he knew the witness sought to be impeached during the years 1852 and 1853, in the city where they resided.

In this case, the time when the witness lived in the neighborhood of the persons called to impeach her credibility, was sufficiently recent and proximate, that the reputation she then bore for truth and morality, was, we think, a fact so clearly tending to prove the degree of credit her testimony was entitled to, as to exclude any discretion in the court as to its admission, and their knowledge concerning it, should.have gone to the jury for what it was worth.

It was error in the court, to refuse to allow the witnesses to answer the question asked, for which its judgment must be reversed, and the cause remanded, that the defendant may have a new trial.


text:
    Murphy vs. Lemay.
    Instructions: How exceptions to saved.

    A general exception to a series of instructions without specification, will not be sustained if any one of the instructions is good.

      APPEAL from Hempstead Circuit Court.
    Hon. Joel D. Conway, Special Judge.

      A. B. Williams, for appellant.

      Hoivard, contra.

   Harrison, J.:

This was a suit by Ethan A. Murphy against Samuel B. Lemay, for the value of a box of merchandise, alleged to have been received by the defendant, a warehouse-man, for the plaintiff, but which the defendant, on demand of the plaintiff, had failed to deliver.

The defendant’s answer denied that the box had ever been delivered to him.

The verdict of the jury was for the defendant. The plaintiff moved for a new trial, which was refused ; he excepted, setting out the evidence, and the instructions of the court for both parties ; and appealed.

The grounds of motion for a new trial were :

First — That the verdict was contrary to the evidence.

Second — That the instructions were conflicting.

As to the first grounds, we need only to remark: That there was no very clear preponderance of evidence either way, and the verdict is conclusive as to its weight. .

Six instructions were given at the request of the plaintiff; and five at the instance of the defendant. The plaintiff excepted without specification, and in gross to those given for the defendant. It is well settled, that an exception to instructions thus taken, cannot be sustained, if any part or one of them is good. Chrisman v. McDonald, 28 Ark., 8; Beaver v. Taylor, 3 Otto, 46; Rogers v. The Marshal, 1 Wall., 644; Harvey v. Tyler, 2 Ib., 328 ; Johnston v. Jones, 1 Black., 22; Lansing v. Wiswall, 5 Denio, 213.

What parts, or which of the instructions were inconsistent with each other or conflicting, the motion for a new trial in no wise indicates or points out; the appellant’s counsel have, however, referred us to the following of the defendant’s series: “ If the defendant received, as a warehouse-man, the box of goods for the plaintiff, he was only bound to take as much care of the same as a prudent man would of his own property;” as repugnant to the following, previously giyen for the plaintiff: “ If the jury find from the evidence, that the defendant received the box of goods in controversy, it devolves upon him to account for the same; and unless he has done so, by the weight of the evidence, they will find for the plaintiff.”

We are unable to perceive any repugnancy between these instructions; and if either was erroneous, it was neutralized by the other, and the judgment would not be reversed for such error. Crain v. Carr, 7 Ark., 241.

The defendant had, to disprove the delivery of the box to him, adduced evidence to show, that he delivered to the plaintiff all the merchandise received at the warehouse for him, and also had used due and proper diligence in taking care of the same.

“ Warehouse-men,” says Judge Story, “ are. bound only to take common and reasonable care of the commodity intrusted to their charge;” and he defines such care to be: That diligence which men in general exert in respect to their own concerns.” Sto. Bail., secs. 11, 444. The said instruction for the defendant was sound and relevant.

The judgment is affirmed.


author: English; Ch. J.:

text:
    Cohen vs. The State.
    1. Gaming: What evidence sufficient under indictment for.

    Under an indictmsnt for betting on a Faro Bank, proof that the defendant bet chips representing money on any day prior to the finding ot the indictment and within the pe.riod of limitation, is sufficient.
    j2. Criminal Law: JZeasonable doubts, etc.

    The rule that the guilt of the accused must be established to the exclusion of every other hypothesis, only applies in eases depending on circumstantial evidence.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Attorney General for the State.
   English; Ch. J.:

The appellant, Isaac Cohen, was indicted in the Circuit Court •'of Garland County for gaming, the indictment charging:

“That said Isaac Cohen, on the 10th day of January, 1877, in the county aforesaid, did then and there unlawfully bet money •on a certain gaming table or device commonly called Faro Bank/ which said Faro Bank was adapted, devised and designed for the purpose of playing a game of chance, at which said game money could have been won and lost, contrary to the form of the statute, etc., and against the peace, etc.”

The defendant was tried on a plea of not guilty.

Wm. Sumpter, a witness for the State, testified in substance, that he lived in the City of Hot Springs, and knew defendant. Some time in the month of January, 1877, he saw defendant betting at. a gaming table, commonly called Faro Bank,” at Malen & Lamis’ saloon. Henry Hecox was dealing the game ¡at the time. He did not see defendant betting money at said game, but saw him betting checks, which he supposed represented money. He saw defendant hand over the money for the checks, ¡and then bet them off at the game. Witness had never bet at a Faro Bank, but he understood the game. Hecox had a Faro box in which he placed a deck of cards, also had a number of cards pasted on a table. The checks used in carrying on the game were made of ivory, bone or some kind of composition. In Faro Bank games, they usually represent money. Defendant bet his checks on the cards on the table, and then Mr. Hecox would draw the cards from the Faro box one by one, and if the card came up like the one the checks were bet on, then defendant would win; if not, he would lose. Witness did not remain long, and did not know whether defendant won or lost money on the game. This occurred in Garland County in January, 1877.

On cross-examination, he stated that he knew the chips defendant bet on the game represented money, because he saw him pay money for them. He did not know that the game upon which the checks were bet, by defendant, was a game of Faro Bank, but it was so commonly called.

•Here the State closed.

Dr. Sturn, witness for defendant, testified, that defendant was sick in bed on the'10th of January, 1877, the day charged in the indictment. That he attended him as physician, and knew that he was not out of his room on that day or night.

Frank Flynn, witness for defendant, testified : “lam familiar with the rules of gaming at a Faro Bank. Chips do not necessarily represent money or any thing of value. Money and chips are frequently bet simply for the purpose of keeping the game running, to induce others to bet, and are often bet for fun.”

Martin Hoack, witness for defendant, testified: “ I am familiar with the rules of the game of Faro Bank; and know that chips do not always represent money or a thing of value. I know that money or chips bet for fun do not win or lose.”

On cross-examination : that in his country (Germany) when a person pays money for chips, he means business, and would not buy chips and pay money for them to bet off for amusement.”

The above was all the evidence, as set out in the bill of exceptions signed by the judge.

At the instance of the State, the court gave two instructions to the jury, which, it seems were not objected to by the defendant, and need not be set out.

The defendant moved the following instructions, which were given by the court:

“First — The jury are instructed by the court, that it is incumbent on the State to prove every material allegation in the indictment, and unless the jury believe from the evidence, that the defendant did bet money upon the game, as charged in the indictment, they must acquit.

“Second — That if they had, from the evidence, a reasonable doubt as to the guilt of the defendant, they, must acquit.

“Third — That unless they are satisfied beyond a reasonable doubt, from the evidence, first, that defendant.bet .money, and second, that he bet it upon a game of chance. called Faro Bank, as charged in the indictment, they must acquit.”

The defendant further asked the court to instruct the jury :

“Fourth — That every material allegation of the indictment must be proved as therein alleged, and unless the same is so proven to their satisfaction beyond all reasonable doubt, they must acquit.

“Fifth — That it devolves on the State to make strict proof of every material allegation in the indictment as laid, in order to convict the defendant, and unless such proof is so made, and unless the same excludes every other hypothesis but the guilt of the defendant, they must acquit.”

The court refused these two instructions and gave the following general charge:

“The indictment in this case is for betting money upon a gaming table commonly called Faro Bank, and the charge ’so> made must be proven as alleged; and that money was bét. But if the jury believe from the evidence, that in carrying on the game, chips were used instead of money, and that these chips represented money paid into the bank, and in that way money was bet, this would be sufficient proof of betting money., If the jury are satisfied from the evidence, that money was bet, it is immaterial how it was done, whether by betting the money directly, or through chips, Avhich represented the same.

“ The jury will take the case, and if from the testimony in the Avhole case, they believe, beyond a reasonable doubt, that defendant is guilty, they Avill return a verdict of guilty, and assess his punishment at not less than fifty, nor more than .one hundred dollars ; on the other hand, if from the testimony in the whole case', they have a reasonable doubt of his guilt, they will return a verdict of not guilty.”

To this general charge the defendant objected.

The jury found the defendant guilty, and assessed his punishment at a fine of $50.

He made a motion for a new trial, Avhich Avas overruled, and he presented a bill of exceptions, which the court signed after, making corrections in it. Defendant attempted to sustain the bill of exceptions originally drafted, by affidavits, but failed. Judgment in accordance Avith the \Terdict, and defendant appealed.

I. The evidence was sufficient to support the verdict. There was no conflict between the testimony of ¥m. Sumpter and the testimony of Dr. Sturn. The former stated that he saw appellant betting at a Faro Bank sometime in the month of Januaiy, 1877. The latter stated that appellant Avas sick and confined to his bed, and not out of his room, during the day and night of the 10th of January, 18.77,- the day laid in the indictment as the time, of the offense. .The': indictment was found at., the, May: Term, 1877. It was sufficient for the State to prove the offense to have been committed on any day-before the finding of the indictment, and within the period of limitation. The particular day laid in the indictment was not material. Scoggin v. The State, ante.

The witness, William Sumpter, saw appellant pay to the keeper of the Faro Bank money for checks, and bet them off on the game. The checks represented the money. The Faro box, the cards, the table and the checks, were manifestly the machinery of the game, and the betting on the game was for money represented by the checks.

It seems from the testimony of appellant’s witnesses that there are sometimes sham betters at Faro; men who seemingly bet to induce others to bet at the game; drummers for the concern; like sham bidders at a mock auction. But there was no evidence that appellant was a sham better. If this had been proven, perhaps the jury might have been disposed to double the fine they put upon him.

Nor was there any evidence that appellaut merely went through the form of betting for amusement, but in fact wagered nothing. Fagan v. State, 21 Ark., 390. The jury no doubt believed from the proof that he paid money for the checks, and bet them off on the game, that he “ meant business,” to use the expression of the German witness.-

II. The rule as to doubts, in misdemeanors as well as in felonies, is that the jury are not to find the defendant guilty upon the mere preponderance of evidence, but that they must be satisfied, beyond a reasonable doubt, ■ that the proof sustains the-material allegations of the indictment, otherwise they should acquit. State v. King, 20 Ark., 166.

In the first, second and third instructions moved for appellant' and given by the -court, the - jury were told that it devolved upbii" the State to prove the material allegations of the indictment beyond a reasonable doubt; and this was sufficient on the subject of doubts, which has become a hobby in all criminal cases, without repeating the rule in the language proposed by appellant’s-fourth instruction.

The rule that the guilt of the accused must be established to the exclusion of any other hypothesis, applies in cases depending on circumstantial evidence, and not to a case like this, where the evidence was direct, and the case well enough made out if the jury believed the testimony of the witness ¥m. Sumpter, and he was not impeached, nor his evidence contradicted.

There was nothing objectionable in the general charge of the court.

Affirmed.