People v. Kelly

WHITE, J. —

Defendant, under the name of Jack Sinclair, was charged with the crime of bigamy, in that he “did knowingly, willfully and feloniously marry one Virginia Roszkowski, said defendant being then and there the lawful husband of another person, to-wit, Louise J. Sinclair, ... ”, A trial before a jury resulted in a verdict of guilty, whereupon, it appears, defendant for the first time disclosed to his counsel that prior to his marriage to Louise J. Sinclair he had been lawfully married to one Ella Miller, but had not heard from her for more than five years prior to his marriage to Virginia Roszkowski. This fact was presented to the trial court upon a motion for a new trial as “newly discovered evidence”. The motion being denied, defendant appealed, and the judgment of conviction and the order denying the motion for new trial were affirmed by Division Two of this court.

(People

v.

Kelly,

32 Cal. App. (2d) 624 [90 Pac. 605].) Upon the going down of the

remittitur

after denial of a hearing by the Supreme Court, defendant moved the trial court to vacate and set aside the judgment. This appeal is from the order denying such motion.

In support of his motion to vacate the judgment the defendant filed an exemplified copy of a certificate of his marriage to Ella Miller in Jefferson County, Kentucky, and an affidavit by the clerk of the circuit court of Jefferson County, Kentucky, to the effect that the records of that court disclosed

[573]

no action of divorce between defendant and his first wife, Ella. There was also filed in support of the motion an affidavit by defendant himself alleging, in substance, that he married Ella Miller in 1921 in Louisville, Kentucky; that in December, 1922, he was convicted of a crime in Indiana and was imprisoned for a period of thirteen months thereafter ; that upon his release from prison Ella told him she desired to obtain a divorce, and affiant gave her the money to obtain the divorce and then left Kentucky; that in 1926, under the name of Jack Sinclair, affiant married Louise Trotter, in Cleveland, Ohio, believing he was divorced from Ella, and he and Louise Trotter lived together as man and wife until February, 1938; that in 1929 affiant visited Louisville and met Ella, who told him she had not obtained a divorce, whereupon he again gave her money to obtain a divorce ; that affiant has never been served with divorce papers, nor has he any knowledge or information that Ella ever obtained a divorce; that during 1930 he attempted to contact Ella, but his letters to her and to her relations were returned unopened or remained unanswered, and that affiant is ignorant of her whereabouts and has not seen or heard from her since 1929; that in April, 1938, affiant’s second wife, Louise, informed him that she had divorced him, and about May 1, 1938, ejected him from their home, at the same time showing him papers which she stated were her divorce papers; that believing he was divorced from Louise, he married Virginia Roszkowski in June, 1938.