
    John C. Gallaher, Plaintiff in Error, vs. The State of Florida, Defendant in Error.
    1. A new trial will be granted where mere hearsay and immaterial evidence was permitted to go to the jury under objection, when the court can see that such evidence tended seriously to prejudice the case oí the defendant
    2. A bill of exceptions is a simple history of the case as tried, and should contain nothing' more nor less than the facts as they appeared from the commencement of the trial until the final Judgment. All objections, rulings of the court and exceptions thereto, should appear in the body of the bill in their proper appropriate place, and will not be considered if upon separate pieces of paper made and filed subsequent to verdict, or in cases of motion for new trial, or in arrest of judgment after the final judgment.
    3. Where the record shows an indictment properly endorsed-and’filed, an arraignment, plea, trial and motion in arrest of Judgment: Sold, that It was too late, on a hearing in this court, for the first time to object that the record does not show that the grand jury presented to the court the indictment upon which the trial was held.
    Writ of Error to the Circuit Court for Suwannee county. The facts of the case are stated in the opinion of the court.
    
      John A. Henderson for Plaintiff in Error.
    The plaintiff in error was tried and convicted in the Circuit Court of Suwannee county at the Fall Term of 1878, upon a charge of bigamy. His motion for a new trial was overruled and he has brought his case upon writ of error to this court for review.
    The asignment of error may be divided into two classes of error, and treated accordingly: the admission of evidence irrelevant and prejudicial to the case of the plaintiff in error, and error of law in the charge of the court.
    Exceptions appear frequently to have been taken, though it appears that the court justifies in one instance the admission of irrelevant and highly prejudicial as well as improper testimony, by certifying that the prisoner was understood by the court to favor the admission of the evidence while his counsel objected and took exceptions. Clearly the counsel.should have the control of the case in the trial.
    The first error assigned is well taken. The letters were wholly irrelevant to the issue, and were calculated to prejudice the prisoner with the jury and should not have been admitted.
    The same is true -of the 2nd, 3rd and 4th errors assigned. For the same reasons the evidence should have been excluded.
    Having the record before it, and exceptions having been properly taken, the court will review the whole case. The doctrine laid down in civil cases is too stringent with respect to exceptions in criminal cases.
    It was error at law to charge that under the circumstances there was not such an abandonment by the wife as would justify the second marriage, when the defendant had supposed her to be dead for three years then past. The home of the husband is the home of the wife. It is abandonment by the wife to refuse to live with the husband thereat. The court will only enquire as to the justification for not so living in divorce procéedings, not in collateral cases.
    The abandonment was- clearly proven, and the fact of the prisoner’s hearing and believing his wife dead for the statutory period was clearly proven, and there was no evidence to the contrary. The verdict was against the evidence.
    This record does not show that the grand jury presented to the court an indictment for the particular felony for which he was tried.
    The statement of the defendant may be relied upon as supporting the verdict, but this was forced from him by the letters and the evidence of the witness, Ambrister, improperly admitted.
    Counsel refers to Laws of Florida, chap. 1637, art. 8 secs. 5 and 6; "Whart. Am. C. Law, vol. 3, secs. 3089-90; Bishop on Marriage and Divorce, sec. 728-30; State vs. Collins, Í3 Fla., p. 651; Gra. and Waterman on New Trials, vol. 1, p. 193, Com. vs. Thompson, 6 Allen, 591; Com. vs‘. Mash, 7 Metcalf, 472.
    
      The Attorney-General for Defendant in Error.
    The first error assigned is that the court in permitting the leters of Twiggs, to. be found on pages 7 to 15 of the record, to be read in evidence.'
    The letters are irrelevant to the issue, except in so far as they relate to his marriage with Miss Ambrister. Whether the statements in these letters are such as were calculated to prejudice the jury, argument upon my part is unnecessary.
    The following authorites bear upon the subject of granting new trials on the ground of admission of illegal testi.mony: Wharton’s Am. C. L., vol. 3, secs. 3080-90; Lynes vs. State, 36 Miss., 617.
    In so far as these letters relate to the first marriage, the fact is otherwise fully proved by the testimony of Ambris-ter, Tennessee marriage license and certificates and. testimony of M. M. Blackburn and statement of Gallaher.
    * The Mississippi case cited above shows that a new trial should not be granted on account of the admission of illegal evidence to prove a fact which is fully established by other and legal evidence in the cause, it being clear that the verdict was not influenced thereby. Upon the point of ^the former marriage and the wife of that marriage being alive, we may, we think, assume that the verdict was not influenced by the statements made in the letters as to such marriage.
    In so far as these letters relate to any other points than those of the first marriage and his wife being alive, there is nothing in them that could have had any weight with the jury in influencing the verdict that is not fully supplied by Gallaher’s statement. In other words, the statement made by Gallaher would clearly have produced of itself every conviction upon the minds of 'the jurors as to his guilt which the letters and the * statement together would have produced.
    But was the admission, of these letters properly excepted to? On page 6 of the record it is stated that the defend ant's counsel objected to their being introduced as evidence, but the court understanding the defendant to oppose the objection made by his attorney, permitted the letters to be read to the jury, and the defendant's counsel then and there excepted, and the exception was noted. On pages 44 and 45 of the record, it is, however, stated that when the de-ifendant’s counsel made this exception, the prisoner, as the ' court understood him, objected to the exclusion of this evidence, and the same not being urged thereafter the court did not rule on the subject, but the evidence was allowed to be stated to the jury. We contend that there was ,an abandonment of this exception. Coker and Scheiffer vs. Hayes, 16 Fla., 368; Story and Sullivan vs. State, lb., 573; Bird vs. State, 14 Ga,, 43.
    The record does not show that the objection, was ruled upon by the court and that the plaintiff then excepted. Pomeroy’s Lessee vs. B’k. of Indiana, 1 Wall., 592; Laber vs. Cooper, 7 Wall., 570-1.
    The second assignment of error is that the court erred in permitting a witness, Asa Ambrister, to give testimony as to the previous trial of the defendant at Sandersville, Ga., upon a charge of living with a woman not his< wife.
    The verdict in this case waB rendered on December 11, 1878, (p. 41 of record.) The record does not show that there was any objection made to the introduction of this testimony before it was admitted, nor does it show that any ruling was made upon the point and an exception taken to the ruling. Prom the record* it does not appear that the exception was thought of befoxe the verdict had been* rendered. The ^exception appears to have been made on 12th. (pp. 43-5 record.) Pomeroy’s Lessee vs. Bank of Indiana, 1 Wall., 592; Coker and Scheiffer vs. Hays, 16 Fla., 369 ; Laber vs. Cooper, 7 Wall., 571.
    The third asignment of error’ is that the court erred in permitting witness, (Ambrister,) to give evidence before the jury that the defendant had been mobbed at Sandersville, Ga., and protected by -witness.
    This assignment of error is subject to the objections made to the second; and, to a great extent, to that made to the first.
    Defendant’s statement covers the mobbing.
    The fourth assignment of error is that the court erred in permitting any statement to be given by Ambrister other than that of his knowledge as to the first alleged marriage at the time the same was given.
    The record does not show that any such exception was taken in the court below on the trial of the cause!
    The fifth ásignment of error is as to a particular part of the Judge’s charge to the jury. The record does not show that any such exception was made on the trial. Story and Sullivan vs. State, 16 Fla., 655; Anderson vs. Hill, 12 S. and M„ 679. .
    The record shows that the sixth assignment of error_ is based upon an exception to the charge not made until after verdict. Story and Sullivan vs. State, 16 Fla., 566; ’ Anderson vs. Hill, 12 S. and M., 679.
    As to the seventh assignment of error, in so far as it sets’ up that the verdict was contrary to evidence, we respectfully submit that the testimony of the State was sufficient to justify it. The testimony of Ambrister, Blackburn and Clonts, including the marriage certificate, make out the
    The jury were the judges of the credibility of the witnesses, and there is not enough in the testimony of Blackburn and Whitfield that was sufficient, even if credited, to overthrow the. effect of the State’s evidence and of the statement of Gallaher. They alone should say what weight should be given it. They have said this by their verdict. Miller vs. State, 15 Fla., 583.
    In so far as this assignment relates to the argument of counsel, the record does not show what the arguments of counsel were. The court below is the proper judge and there is nothing here to show that any right has been abused.
    Upon the eighth assignment of error, we assert that the point should have .been made in the court below. It cannot be made here first. Francis vs. State, 6 Fla., 306; Townsend vs. State, 2 Blackford, 153.
    We further insist that it is not necessary that there should be such a record. Mose vs. State, 36 Ala., 421.
   Me. Justice VanValkenburgii

delivered the opinion of the court.

This was an indictment found in pursuance of sections 4 and 5 of chapter 8 of “an act to provide for the punishment of crime and proceedings in criminal cases,” approved August 6th, 1868, which sections read as follows:

“Section- 4. Whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this state, shall (except in the cases mentioned in the following section,) be deemed guilty ’ of polygamy, and be punished by imprisonment in the State Penitentiary not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding five hundred dollars.

“Sec. 5. The provisions of the preceding section shall not extend to any person whose husband or wife has been continually remaining beyond sea, or has voluntarily withdrawn from’'the other and remained absent for the space of three years together, the party marrying again not knowing the other to be living within that time, nor to any person legally divorced from the bands of matrimony, and not the guilty cause of such divorce.”

The first assigned error is in permitting certain letters from H. D. D. Twiggs to Asa Ambrister, a witness for the prosecution, to be read in evidence to the jury.

Asa Ambrister was a witness for the State on the trial of the plaintiff in error. -Among other things he testified, “I was present at the marriage of J. C. Gallaher, the defendant, to Mary A. Ambrister; I heard the ceremony performed, and defendant accepted her as his wife; they were married on the 23rd of October, 1851; I know the defendant; he is the same man; his wife has lived with me since 1863; the defendant was in the Confederate service, lost his prm at the seige of Vicksburg, returned to his family after the surrender of Vicksburg, and remained until the Federal army took possession of East Tennessee, which was but a short time. He returned in 1866 Bon after the final surrender; he had lost all and had no means and nothing to do; defendant Baid if he had Borne means, lie would go where he could get business and provide a home for his family; hiB wife was willing, and I and my neighbor, Lenoir, indorsed his note in bank for some money and he went away; kept writing back from Alabama that he was ’unable to provide a home for his family for a year or. more. Then he moved'* to Macon, Georgia, and continued the correspondence until 1871, when I received a letter from one Judge Twiggs.”

Here follows in the bill of exceptions a statement in these words, “which letter, with a number of other letters from Judge Twiggs to witness, was introduced as evidence, to which testimony defendant’s counsel objected. The court understanding the defendant to oppose the objection made by his atorney, permitted the letters to be read to the jury, to which action of the court defendant’s counsel then and there excepted, and the exception noted.”

The first letter, which was then read in evidence to the jury, was as follows:

“SANDERSVILLE, ‘WASHINGTON Co., Gav
December 28, 1870.
“Mr. Asa Ambrister:
“My Dear Sirs I take the liberty to write you a few lines in-order to obtain some definite information witji regard to'the circulntion of various reports against the character of Maj. J. 0. Gallaher, who resides in this place, and is engaged in the practice of law. This man has long since been regarded by the people of this place with distrust and suspicion,” &c.
The remainder of the letter is filled' with charges against the character of the defendant Gallaher, not properly admissible in evidence, and tending only to prejudice the mind of the jury against him.
Three other letters of the Same character and equally objectionable, purporting to be written by H. D. D. Twiggs to the witness, Ambrister, were also, read in evidence to the jury. There was no proof of the genuineness of either of the letters, had they not been otherwise objectionable, other than in the testimony of Ambrister above quoted. It is true, that after they were so read to the jury and on the commencement of his subsequent examination, he testified, “After receiving these letters, I consented to go to Sandersville as a witness against defendant.”
This* cannot be taken as sufficient proof of the letters, ' even if ‘they were otherwise admissible, to warrant their introduction as evidence. But they were mere hearsay, irrelevant and immaterial to the issue, in no way tending to prove the first marriage of Gallaher, as is suggested on the part of defendant in error, or any other fact, but on the contrary, having the effect to prejudice the case • of the prisoner with the jury. They were not even proven to be in the handwriting of Twiggs, who, it is claimed, wrote them.

In a subsequent part of the bill of exceptions is the following statement:

“State vs. Gallaher.
“It is hereby noted that the prisoner’s counsel objects to the introduction by the State of the evidence of Ambrister to the following effeot, that he went to Sandersville, Geo., in 1871, as a witness for the prosecution against defendant, in a charge- of living with a woman as his wife while his first . wife was still living, and that the defendant was mobbed while there and shot, and that he, Ambrister, protected him and carried him in a hack to Macon, and that Judge Twiggs and others told him that defendant had been living in adultery with a woman in Sandersville and passed her off as his wife. Also, that defendant had borrowed money from him and not paid it back- on his leaving Tennessee in 1865.
“It is also noted that defendant’s counsel objected to the introduction of the letters of Judge Twiggs offered in evidence by the State, said letters being here noted as received in evidence,, and that the defendant’s counsel further grayed that these exceptions be noted by the judge on the trial of 379 cause.
“(Signed) Wilkinson Call,
“For Prisoner.
“The above exceptions are hereby noted and allowed, but it is stated here on.the record that when the defendant’s counsel made the exception last stated, the prisoner, as the court understood him, objected to the exclusion of this evidence, and the same not’ being urged thereafter the court did -not rule on the subject, but the evidence was allowed to be stated to the jury.
“Wilkinson* Call,
“For Prisoner.6
“Exceptions noted and allowed Dec. 12, 1878.
“W: Bryson, J. 3d J. C.”

This paper, which seems to have been filed by the counsel for the prisoner, bears date on the 12th day of December, after the trial had been concluded on the 11th. If this was the only exception taken, under our previous decisions, referred to by the Attorney-General, it would not .be available to reverse this judgment. This court has frequently held that exceptions, to be available on an appeal or writ of error, must be taken during the trial; to evidence, when offered; to the charge of the court, when made, and before the jury leave their seats to consider of their verdict. The bill of exceptions is a simple history of the case as tried, and should contain nothing more nor less than the facts as they appeared to the court and jury, from the commence- ■ ment of the trial until the final, judgment by the court.

All objections, rulings by 'the court, and exceptions should appear in the body of the bill of exceptions, in their proper and appropriate place, and will not be considered. if upon separate pieces of paper filed subsequent to the .verdict, or in cases of motion for new trial, or in arrest of judgment after final judgment. (Coker & Scheiffer vs. Hayes, 16 Fla., 368; Story & Sullivan vs. State, Ib., 573.) See Eule 103 of “Eules of Circuit Court in Common Law Actions,” where a proper form for a bill of exceptions is given.

In this caso, however, it appears that the introduction of these letters was objected to at the proper time, and the bill of exceptions shows that they were permitted to be read'to the jury and' that an'exception was taken. vIt is tfue that the judge says that “understanding the defendant to oppose the objection made by his attorney, he permitted the letters to be read,” at the same time and in the same sentence certifying .“to which action of the court defendant’s counsel then and there excepted, and the exception noted.” This- action of the defendant’s counsel, who was conducting the case, negatives the idea that the objection was either waived or withdrawn. An exception was distinctly taken and placed on the record.

The second, third and fourth assignments of error relate to the evidence of Ambrister on the trial. There appears to have been no objection made or exception taken to the introduction of that evidence at the time it was offered, but on a subsequent day, after verdict, an exception was filed, by which it appears that the defendant’s counsel first objects to such evidence. Under repeated decisons of this court, this objection and exception*is entirely too late,-and cannot be made available for the purpose of reversing this judgment.

The fifth and' sixth assignments of error allege that the court erred in two specific propositions in his charge to the jury, but no exceptions were properly taken or noted.

The eighth error assigned is, that the record does not show that the grand jury presented to.the court the indictment, or any indictment, for the offence with which the defendant was charged.

This error is here assigned for the first time in this case. , No notice of it was taken in the court below. It was not made a ground in arrest of judgment, and does not appear 'by anything in the record to have been raised or considered. The certified transcript of the indictment attached to the record is endorsed in due form, “State of Florida vs. J. C. Gallaher, Polygamy. A true bill, May 1, 1878. J. P. Morgan, foreman. Filed in office this the 1st day of May, A. D. 1878. Pob’t A. Beid, Clerk of the C. C.” The prisoner was arraigned, plead not guilty, and was tried. Our court has held in a like case that it was too late to malee the objection for the first time here. Such must be held to be the rule. (Francis vs. State, 6 Fla., 306; Moore vs. State, 35 Ala., 431.) See also Collins vs. State, 13 Fla., 651, where the question is fully discussed.

In view of the fact that the letters from Twiggs to Am-brister were improperly admitted and read in evidence, a new trial must be awarded.  