State v. Cooper

• Citation: 15 S.W. 327,103 Mo. 266
• Parties: The State v. Cooper, Appellant
• Decision Date: 10 February 1891
• Court: United States State Supreme Court of Missouri

15 S.W. 327

103 Mo. 266

The State v. Cooper, Appellant

Supreme Court of Missouri, Second Division

February 10, 1891

Appeal from Buchanan Circuit Court. -- Hon. Silas Woodson, Judge.

Reversed and remanded.

M. G Moran and James Moran for appellant.

On an indictment for bigamy, the first marriage will not be inferred or presumed from matrimonial cohabitation, with the reputation of being married persons, coupled with the admissions of the defendant during such cohabitation that they were married. While such proof is sufficient in a civil case where only one presumption can arise, the rule is necessarily different in the case of bigamy, where the presumption of innocence arising from the second marriage nullifies and over-throws the presumption of the first marriage obtained by such cohabitation, reputation and admissions. Morris v. Miller, 4 Bur. 2057; Regina v. Flaherty, 2 Car. & Ker. 782; State v Hodgkins, 19 Main. 155; State v. Littlejohn, 9 Mass. 163; Breakley v. Breakley, 2 U. C. Q. C. 349 358; People v. Humphrey, 7 John. 314; Fenton v. Reed, 4 John. 52; Waddingham v. Waddingham, 21 Mo.App. 609, and cited cases; Barley v. O'Bannon, 28 Mo.App. 44; Jayne v. Price, 5 Taunt. 326; Case v. Case, 17 Call. 598; Klein v. Landman, 29 Mo. 359; Jones v. Jones, 45 Md. 144; Chamberlain v. Chamberlain, 71 N.Y. 423; Gahagan v. People, 1 Parker C. R. 378.

John M. Wood, Attorney General, for the State.

(1) The first instruction was correct. R. S. 1879, sec. 3790. (2) The third and fifth instructions given as asked by the state, and instruction, numbered 2, given by the court on its own motion, properly declared the law as to what was necessary to constitute a marriage, and are fully supported by the cases of Dyer v. Brannock, 66 Mo. 391, and Cargile v. Wood, 63 Mo. 501; State v. Gonce, 79 Mo. 600. (3) An instruction similar to instruction, numbered 4, in this case, was approved in the case of State v. Brooks, 99 Mo. 137.

OPINION

Thomas, J.

The defendant was tried for and convicted of bigamy in the criminal court of Buchanan county and was sentenced to imprisonment in the penitentiary for four years and six months, and the case is here on his appeal.

The testimony shows that in the early part of April, 1887, defendant told a friend of his that he intended marrying Lavina Atkins, who was at the time a widow; that shortly after that, in the latter part of the same month, he represented that they had married, and they commenced living and cohabiting together as man and wife, and he introduced her and held her out to the public, and in every respect treated her, as his wife, until a few days before his marriage with Eva Alexander. In the latter part of April, 1887, he went with Lavina Cooper (formerly Atkins) to Rochester, in Andrew county, on a visit to her father, and there stated that they had married in Kansas a short time before. He represented to Nelson Graves, Lavina Cooper's father, that they had had some trouble marrying, that they had to go to Kansas to get their license, that he was under age, and their parents would not let them get married here, and he had to make two trips to Kansas -- one to get the license and another to get married. After that he held her out to his and her relatives, and to the public generally, as his wife; and they lived together as man and wife at various places in St. Joseph. During the time he had some transactions in regard to the transfer of some real estate, which they executed as man and wife. Their conduct and relations towards each other during the entire time, covering a period of over two years and a half, was that of man and wife. On November 26, 1889, he was married in Buchanan county to Eva Alexander. Shortly after this he was arrested on the charge of bigamy.

The court, at the instance of the state and on its own motion, instructed the jury as follows: "The court, on motion of the state, instructs the jury that if they believe from the evidence in this case that the defendant, on or about the twentieth day of November, 1889, at Buchanan county, wilfully married one Eva Alexander, as charged in the indictment, and he had another living wife at the time, to-wit, Lavina C. Cooper, then the jury will find the defendant guilty of bigamy as charged in the indictment, and assess his punishment therefor at imprisonment in the penitentiary for a time not less than two nor more than five years, or in the county jail not less than six months or by fine not less than $ 500, or both a fine not less than $ 100 and imprisonment in the county jail not less than three months."

"3. The court instructs the jury that if they believe from the evidence that the defendant and Lavina C. Cooper, alias Lavina C. Atkins, for any long period of time lived together publicly as husband and wife; that he passed himself for her husband and she for his wife, introduced himself and herself to his family and his friends and the public as her husband and she as his wife, cohabited with her as his wife and he as her husband, and held himself and herself out to the public generally as sustaining the relations of husband and wife by his general acts and conduct, then the jury are instructed that the law presumes that they were married within the meaning of the law and that they are husband and wife, and this presumption is conclusive upon the defendant, unless he shall satisfy the jury by evidence in the case to their reasonable satisfaction that he was not married to Lavina C. Cooper, his reputed first wife, and that unless he shall so satisfy the jury they will convict him as charged."

"5. The court instructs the jury, it is immaterial in arriving at the guilt or innocence of the defendant in this case, whether he actually knew it was not necessary to constitute a binding marriage to have said marriage solemnized by a minister of the gospel or a justice of the peace, or some other officer authorized by law to solemnize a marriage."

Given by the court on its own motion: "2. The court instructs the jury that in law marriage is a civil contract; and that it is not necessary to its validity that it should be solemnized by a minister of the gospel, a judge of a court of record, or by anyone else authorized by law to solemnize marriages. And if they believe from the evidence in this case, that the defendant and Lavina C. Cooper were in fact married to each other, on or about the eighteenth day of April, 1887, and that afterwards, to-wit, about the twentieth of November, 1889, and whilst said marital relations existed between said parties first named, he, the said defendant, was married to Eva Alexander, in Buchanan county, Missouri, they will find defendant guilty and assess his punishment as stated in instruction, numbered 1, given on the part of the state."

Defendant saved his exceptions to the giving of these instructions, and, in substance, asked the court to instruct the jury: First. That his marriage with Eva M. Alexander in November, 1889, overcame the presumption of his marriage with L. C. Atkins, and, second, that no inference of marriage with L. C. Atkins, arising from cohabitation, etc., can be drawn, but an actual marriage must be shown to convict him of bigamy. The court refused to so instruct, and defendant duly excepted, and urges here that the court erred in the instructions given as well as refusing those he asked, and also in not giving an instruction defining what marriage is.

I. We are clearly of the opinion that instruction, numbered 3 given at the instance of the state, did not declare the law properly. The fact of the marriage of defendant and L. C. Atkins must be proved before he can be punished for bigamy. This marriage is at least a part of the corpus delicti, without proof of which no conviction can be had. The fact that a man and woman live together for a long time publicly, pass and introduce each other and cohabit as husband and wife and say they are married, is evidence tending to prove a marriage, and may even raise a presumption that the parties were in fact married, but this presumption is one of fact and not of law. It is the province of the jury and not the court to determine what probative force these facts have in a given case. No doubt the trial court gave...