Opinion
June 13, 1949.
1. Criminal procedure — indictment — bigamy.
An indictment attempting to charge bigamy, which alleges nothing as to the time, place or circumstances of the former marriage and did not give name of the other person to that marriage, is fatally defective and void.
2. Appeal — void indictment.
When an indictment is void, the fatal defect may be availed of on appeal, even though the objection was not made in the trial court.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, J.
J.L. Thompson and O.B. Triplett, Jr., for appellant.
The indictment was fatally defective.
The indictment in this case charges that appellant married Ruthie Mae Chapman, knowing that she had a living husband. It does not allege the date of the former marriage nor give the name of the former husband.
This form of indictment was expressly condemned in Graves v. State, 99 So. 364, 134 Miss. 547, the court using the following language: "In our opinion the indictment had to set forth something in the nature of an allegation with reference to time, place, and circumstances of the former marriage, or it had to name the person with whom the former marriage is alleged to have been contracted. There had to be an allegation showing that there was a valid marriage. While it is not necessary to set forth the former marriage with all the particularity of description that the second marriage is alleged, still it ought to allege enough to inform the accused of the marriage he is alleged to have contracted and not require him to run the gauntlet of any possible proof of marriage with any person, anywhere, at any time, in the whole world."
It is true that no demurrer was interposed to the indictment; and we are aware of the effect of Sec. 2449, Code 1942; but the Graves case directly holds that the allegations omitted in this case are the very substance of the offence. Our court has repeatedly held that the validity of an indictment may be challenged for the first time on appeal. Kelly v. State, 36 So.2d 925.
Suppose an indictment charging murder should merely charge that the defendant murdered "a human being", or a rape charge merely referred to "a female", would this court permit such an indictment to stand when challenged at any time?
Crosby v. State, 191 Miss. 173, 2 So.2d 813, is directly in point. In that case the indictment failed to allege who owned the building that was burglarized. It was held that this omission could be raised for the first time on appeal.
The statute on burglary merely says "any dwelling house"; but the statute defining bigamy requires that the accused be guilty of having married "the husband or wife of another living." We respectfully submit that it is essential that the person described as "another" be named in the indictment.
In this day and time of multiple marriages — particularly among negroes — it is often difficult, if not impossible, to know who "another" is. The indictment must give this information. It is far more essential than to be informed who the owner of a burglarized dwelling house is.
This rule, as announced by our own case of Graves v. State is supported by decisions from other jurisdictions: Gunter v. State, 80 Tex. Cr. 501, 191 S.W. 541; Davis v. Com., 13 Bush (Ky) 318; State v. La Bore, 26 Vt. 765; McAfee v. State, 38 Tex. C.R. 124, 41 S.W. 627.
The English authorities also require indictments for bigamy to set out with particularly the time and place of the first marriage, and to whom. 3 Chitty Cr. L. 719; Bishop St. Cr. Sec. 601.
Some states have sanctioned the omission of the name of the living spouse where the indictment alleges that it was not known to the grand jury; but even then, as held in State v. Wilson, 30 Conn. 507, if it appears in the trial that the name was known to the grand jury the defendant is entitled to acquittal, citing Archilbold's Crim. Pl. 33.
The gist of the offense here is to (a) knowingly (b) marry (c) the wife of (d) another (e) living.
The indictment in omitting (d) did not conform to the law as required by Sec. 26 of the Constitution of Mississippi.
R.O. Arrington, Assistant Attorney General, for appellee.
It is assigned as error that the indictment brought against appellant was fatally defective in that it failed to give the name of the living husband of Ruthie Mae Chapman and failed to give the time and place of her former marriage but instead only described her by her maiden name.
An examination of the indictment herein set out above fully informs the appellant of the crime with which he was charged. The only possible addition thereto which could have been amended was to name the living husband of Ruthie Mae Chapman who was, as the record shows, Joe Moore. There was no demurrer filed to this indictment. Section 2449, Mississippi Code 1942, reads as follows: "Section 2449. Indictment — demurrers to — when filed in capital cases. — 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."
In McQueen v. State, (Bigamy case) 143 Miss. 787, 109 So. 799, the court held that a defect in an indictment appearing on the face thereof must be taken advantage of by demurrer and not otherwise.
In Bryant v. State, 179 Miss. 739, 176 So. 590, (Bigamy case) the court held: "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 wilfully, unlawfully, feloniously, knowingly, and bigamously marry and have for his wife a certain other, was sufficient (Code 1930, section 795)."
Appellant was convicted upon an indictment which, omitting the formal parts, charged that he "did then and there wilfully, unlawfully, feloniously, knowingly and bigamously marry one Ruthie Mae Chapman, a married woman, knowing at the time that she, the said Ruthie Mae Chapman, was married and had a living husband". (Hn 1) The indictment did not charge the time, place of circumstances of the former marriage of Ruthie Mae Chapman nor did it give the name of her living husband.
In the case of Graves v. State, 134 Miss. 547, 554, 99 So. 364, 365, this Court said: "In our opinion the indictment had to set forth something in the nature of an allegation with reference to the time, place, and circumstance of the former marriage, or it had to name the person with whom the former marriage is alleged to have been contracted."
Under this authority the indictment upon which appellant was convicted is fatally defective. In the Graves case there was a demurrer to the indictment, which was overruled by the trial court. In the case at bar there was no demurrer and the insufficiency of the indictment was not challenged in nor brought to the attention of the lower court, and it is raised for the first time in this court.
While we are reluctant to hold a trial court in error upon a matter which was not brought to its attention, it is nevertheless the law of this state that (Hn 2) a fatal defect of this nature may be raised for the first time on appeal, it being our duty to "maintain unbroken the constitutional safeguards of the lives and liberties of the people." In the recent case of Kelly v. State, Miss., 36 So.2d 925, 926, not yet reported in the state reports, this court said: "It is true that the objection to the indictment before us was not raised in the lower court and is being raised for the first time here on appeal, but the indictment under consideration is wholly void for omitting the word `did'. It cannot be waived and its validity can be challenged for the first time on appeal. Crosby v. State, 191 Miss. 173, 2 So.2d 813; Herron v. State, 118 Miss. 420, 79 So. 289; Cook v. State, 72 Miss. 517, 17 So. 228, 229."
The judgment of the lower court is accordingly reversed and the appellant held under bond to await the action of the grand jury upon a proper indictment.
Reversed and appellant held to await further action of grand jury.