Gibson v. State

<p>Indictment for bigamy; from Hall superior court — Judge Jones. March 5, 1921.</p> <p>The special ground of the motion for a new trial, to which the decision refers, is in an amendment which states that counsel for the defendant has, since the rendition of the verdict, “ ascertained and found out the following newly discovered evidence,” set out, and “ attaches hereto, as Exhibits A and B, affidavits of himself and his counsel,” which “ are hereby made a part of this amended motion for a new trial,” etc. This amendment was allowed by the trial judge in an order which states that “ the recitals of facts contained in the foregoing motion for new trial and the amendment thereto are hereby approved as true and correct only to the extent that the statements are made and affidavits attached.” Gibson was convicted under an indictment for bigamy which charged that, being lawfully married to Erna Boland, he married Ara Lord. Eye-witnesses’testified to each marriage, and it appeared that the marriage to Erna Boland occurred about three years before the other marriage. The defendant, in his statement at the trial, said, in regard to the former marriage: “ The woman they claimed I married to hadn’t been divorced, and that released me from her.” The alleged newly discovered evidence set out in the motion for a new trial-was to the effect that prior to the defendant’s marriage with Ara Lord, which occurred on December 23, 1920, his marriage to Erna Boland was annulled and set aside in proceedings instituted by her in the superior court of Yancey county, North Carolina; and the affidavit of his attorney states that the affiant received a letter of the clerk of that court, dated February 21, 1921, saying, “ In answer to yours of recent date will say that Erner Boland had the marriage annulled, as the records in this office show, between her and Gibson,” and that the record would be made up for a stated sum. The affidavit states that the defendant has been unable to raise the money required for this purpose and that no reply has been received from an attorney who was requested “as a work of charity and justice to get up the records . . without charge.”</p>