Crawford v. State

• Decision Date: 02 December 1895
• Citation: 73 Miss. 172,18 So. 848
• Court: Mississippi Supreme Court
• Parties: C. W. CRAWFORD v. THE STATE

18 So. 848

73 Miss. 172

C. W. CRAWFORD v. THE STATE

Supreme Court of Mississippi

December 2, 1895

FROM the circuit court of Attala county, HON. C. H. CAMPBELL Judge.

The opinion states all the facts relating to the controlling question involved in the decision.

Affirmed.

Anderson & Davis, for the appellant.

On the facts shown by the record the appellant should have been acquitted, and doubtless would have been, but for the erroneous instruction for the state, in which his union with Florence King was recognized as a valid marriage. That marriage occurred in February, 1893, while appellant's first wife, Susan Crawford, was still alive, and before he had obtained any divorce from her. It was therefore void, and the indictment charging him with bigamy, based upon his having for wife Florence King and Roxie Gregory at one and the same time was not supported by the evidence. Gibson v. State, 38 Miss. 313; Cartwright v. McGown, 12 N.E. 737; Holbrook v. State, 34 Ark. 511; 14 W.Va. 834.

The first wife, Susan Crawford, having died in July, 1893, after the union of appellant with Florence King, but before he married Roxie Gregory, in December, 1894, the marriage with the last named person was not unlawful, since no impediment existed by reason of the invalid union with Florence King.

Frank Johnston, attorney-general, for the state.

The decree prohibiting the appellant from marrying again, in a divorce a vinculo, should be treated merely as a penalty subjecting him to process of contempt, but not rendering the second marriage void. The question is res nova in Mississippi, but it has been so determined by many of the courts. Van Voorhis v. Brintnall, 86 N.Y. 18; People v. Hovey, 5 Barb. (N. Y.), 117-119; Moore v. Hegeman, 27 Hun (N. Y.), 68, 70; Dickson v Dickson, 1 Yer. (Tenn.), 110, 114, 115. The decree could not have any extraterritorial effect so far as this penalty is concerned. Fuller v. Fuller, 40 Ala. 301, 306; Commonwealth v. Lane, 113 Mass. 458; Putnam v Putnam, 8 Pick., 433; VanStorch v. Griffin, 71 Pa. 240, 244; Dickson v. Dickson, supra; Van Voorhis v. Brintnall, supra. To say that such a provision against a second marriage by the party in fault, in a decree dissolving the marriage, is effectual as a bar to a second marriage in the state where granted, and does not have that effect elsewhere, involves this absurdity: A resident of New York was thus divorced in that state, he stepped over to New Jersey, was married a second time, came back to New York, and the second marriage was recognized by the New York court. Van Voorhis v. Brintnall, supra. Such a result should demonstrate that the prohibition should not have the effect, anywhere, of making the second marriage void. Thorp v. Thorp, 90 N.Y. 602. Evasion is so easy that no disability to marry can be said to exist.

I call special attention to a Georgia case, holding that the second marriage is not void, but at most voidable. Park v. Barron, 20 Ga. 702.

There is another view, viz.: Whether, in the absence of any express stipulation in the decree that a second marriage should be a nullity, the second marriage would be invalid. 1 Bishop on Divorce (4th ed.), § 306. This learned author refers to the rule that a common law marriage is good notwithstanding statutory regulations, where the statute does not contain express words of nullity. Ib., § 283. He further says that there are strong reasons for holding that a general prohibition should not make the second marriage invalid. 2 Bishop on Divorce (4th ed.), § 704. See, also, Williams v. Oates, 5 Ire. (N. C.), 535. If it operates as a penalty, the second marriage is valid, and the party prohibited may be criminally liable under a penal statute. 2 Bishop on Divorce (4th ed.), § 701; Dickson v. Dickson, supra. See, also, Houston v. Moore, 5 Wheaton, 1, 69; 17 Mass. 515, 540; 14 Johns. (N. Y.), 335; 17 Ib., 4; 8 Pick., 433.

The reasoning, as well as the weight of authority, is to treat the prohibition as a penalty, bringing the offender within any criminal statute that may exist for its enforcement, but not as annulling the second marriage. Otherwise the extraordinary anomaly would be presented of one party divorced a vinculo, and the other only partially divorced.

Argued orally by Frank Johnston, attorney-general, for the state.

OPINION

WOODS, J.

The indictment charges "that C. W. Crawford, in Pickens county, Alabama, on the fifth day of February, A.D. 1893, did marry and have for his wife one Florence King, and afterwards, while the said Florence King was living, in the county of Attala, in the State of Mississippi, on the ninth day of December, 1894, feloniously did marry and have for his wife one Roxie Gregory," etc. These facts appear plainly enough in the transcript, and are not controverted. The defense to the crime charged rests upon the following state of facts shown by the evidence offered by the defendant--viz.: In the year 1880, in the State of Georgia, the defendant was married to one Susan Driggers. In the year 1888, Susan obtained a divorce from the defendant, in Russell county, Alabama, by the terms of which the bonds of matrimony theretofore existing between herself and the defendant were dissolved, though the decree of dissolution, under the statute of that state, prohibited the marrying again of the defendant. In the month of July, 1893, Susan died; but, before that time, and while Susan was alive, to wit: in February, 1893, the defendant had been married to Florence King, in the State of Alabama, as we have already seen.

The contention, and the only contention possible, on which the defendant's marriage with Roxie Gregory, in Attala county, in December, 1894, can be justified and held lawful is that the marriage with Florence King, in 1893, was void by reason of the prohibition of marriage by the defendant in the decree of the Alabama court which dissolved the marriage tie between Susan Driggers, the first wife, and the defendant, and, hence, the marriage with Florence King being void, the subsequent marriage with Roxie Gregory, after the death of Susan Driggers, was legal, valid and not bigamous.

In considering the important and delicate question thus presented, we turn, first of all, to the Alabama statute to ascertain its precise terms. Section 2688, code of Alabama 1876, declares that the chancellor before whom divorce proceedings are pending, "in making his decree in the cause, shall, as the evidence and the nature of the case may warrant, direct whether the party against whom the decree of divorce is made be permitted to marry again," etc., without any other words making a marriage subsequently contracted in disregard of the direction of the decree a nullity, and without declaring the consequences of disobedience to the direction of the decree against another marriage. It is clear that the defendant was in contempt of the court in Alabama which granted the divorce to Susan Driggers, on her application, in making the marriage with Florence King; and it may be, also, that, by such marriage with Florence, he incurred the penalty of the criminal code of Alabama denounced against bigamy; but it is, nevertheless, clear likewise that such marriage is not made void by the Alabama law in any express terms.

To reach any satisfactory solution of the question presented, it may be well to consider for a moment what marriage, or the marriage contract,...