The opinion
On Rehearing.
• [5] So far as the defendant’s right of trial by jury is involved the question presented is as to the effect of the defendant’s failure to comply with the statute rather than a construction of -the statute. If it was a question as to whether the act of the defendant that is supposed to effect the waiver was within the letter and spirit of the statute, and there was reasonable doubt as to whether the act was within the statute, as in Curlee’s Case, the doubt would be resolved in favor of the right of trial by jury. Curlee v. State, 75 South. 268 ; 1 Here there is no doubt as to the fact that the defendant failed to comply with the requirements of the statute in making the demand or request for jury trial, and the result is that trial by jury was waived, and it became the court’s duty to proceed with the trial without a jury. Ex parte Elba Bank & Trust Co., 199 Ala. 651 , 75 South. 294 ; Baader v. State, 201 Ala. 76 , 77 South. 370 .
[6] The fact that the court had previously ruled that the defendant had not waived trial by jury and had passed the cause to a day of the jury term, in no way relieved the court of the duty to try the defendant without a jury, and was not an obstacle to the correction of the erroneous order previously entered. The defendant’s rights are fixed by law as applied to the facts, and not by a holding of the court not in accord with the law.
[7] The name of the person assailed as laid in the indictment is “Nellie Busby.” This is a material averment and element of the burden of proof resting upon the state as to the identity of the offense. Morningstar v. State, 52 Ala. 405 ; Nugent v. State, 19 Ala. 540 .
[8] The bill of exceptions recites that “Nellie Busby,” the person the evidence tends to show was arrested, was examined as a witness, and the evidence shows that that was her maiden name. On cross-examination, the defendant brought out the fact that previous to the assault the witness had- married one Martin Tucker, and also developed facts tending to show that the marriage was bigamous, and that Tucker had been convicted and sentenced to the penitentiary for the offense. Such marriages are void ad initio, and are not attended by the usual incidents attending a legal marriage, in the absence of statute so declaring. Stewart v. Vandervort, 34 W. Va. 524 , 12 S. E. 736 , 12 L. R. A. 50, and note; 18 Rul. Case Law, p. 445, § 75.
[9] If the marriage was bigamous, as the evidence tended to show, the name of the prosecutrix was not changed thereby, and the averments of the indictment were sustained.
[10] It was not essential to the defendant’s conviction that the evidence should show that the party jointly indicted with him-participated in the commission of the offense. White v. State, 12 Ala. App. 162 , 68 South. 521 ; Segars v. State, 88 Ala. 144 , 7 South. 46 ; Crawford v. State, 112 Ala. 1 , 21 South. 214 .
[11] We are of opinion that the word “no,” immediately before the words “A true bill,” refers to and is a part of the indorsement as to whether a prosecutor appeared, and that the position of the word on the indorsement is a mere clerical and self-correcting error; the word “prosecutor” being either written *583 on the indictment before the word “no,” instead of after, or that these words were reversed in their order in transcribing the indorsement into the record.
Application overruled
Ante, p. 62.