People v. Dawell

• Decision Date: 10 July 1872
• Citation: 25 Mich. 247
• Court: Michigan Supreme Court
• Parties: The People v. William Dawell

25 Mich. 247

The People v. William Dawell

Supreme Court of Michigan

July 10, 1872

Heard April 30, 1872

Exceptions from St. Joseph Circuit.

Dwight May, Attorney-general, for the People.

Mason & Melendy, for the defendant.

Cooley J. Christiancy, Ch. J., concurred. Campbell, J. Graves, J. did not sit in this case.

OPINION

Cooley, J.

This defendant has been convicted of bigamy, and now, upon exceptions, asks that the verdict be set aside. Both the marriages were admitted. The first took place in 1857; the second was to one Minnie Kopp, in August, 1871, while the first wife was still living. The defense was, that before the second marriage, the defendant had been divorced from his first wife on her application. To establish this, he gave in evidence a copy of the record of a proceeding in the Court of Common pleas of Noble County, Indiana, which contained: 1. What purported to be a complaint of Mary, the first wife, against the defendant, presented at the October term, 1870, averring her residence in Noble county; charging defendant with refusal to speak with or treat her as a wife, and finally, with refusal to cohabit with her, and with abandonment, and praying for a divorce; 2. An authority from the defendant to one Goodwin, an attorney of Noble county, "to appear for me in any court of record of said county, and answer for me, and waive process that my wife, Mary Dawell, may procure a bill of divorce;" 3. An answer by Goodwin, on behalf of defendant, admitting the wife's residence in Noble county, but denying all the other allegations of the complaint; 4. A judgment of the court, rendered on the third day of the same October term, purporting to be based on evidence, and declaring the marriage dissolved.

This expeditious proceeding, in which the defendant, in voluntarily appearing, declares his purpose to be to enable his wife to obtain a divorce, bears upon its face such evidence of collusion as, in this State, would justify the setting aside of the decree, whenever attention should be called to the facts; and we do not doubt that such would be the case in Indiana also, for the Supreme Court of that State has very carefully laid down the doctrine that divorces by collusion are not to be suffered to stand: Scott v. Scott, 17 Ind. 309. But until the decree should be set aside or reversed by the action of a competent court, it could not be treated as void on the ground here indicated.

The prosecution claimed on the trial that the whole proceeding was void for want of jurisdiction; that the courts of Indiana never had any authority to decree a divorce between the parties, and that the decree in the case was procured by a fraud upon the law and deception practiced upon the court. To establish this they introduced evidence tending to show that the said Mary Dawell and William Dawell, mentioned in said record, were, during the whole of the year 1870, residents of the county of St. Joseph, and State of Michigan, and that they had resided, and still continued to reside, in said county of St. Joseph, in the same house, for more than two years preceding the time of trial (January 25, 1872), and never resided in the State of Indiana, and that during that time the said Minnie Kopp had resided with them. The prosecution then introduced the said Goodwin as a witness, who testified as follows: "I resided at Kendallville, Indiana, in October, 1870; am by profession an attorney-at-law." Being then shown the Noble county record, he proceeded: "I have knowledge of this case. I appeared for the defendant, William Dawell, in said court. I had what purported to be authority to appear for him, handed me by Mr. J. B. Wade, attorney for plaintiff in said proceeding. I have before me the original authority. It is in writing. I think I know Mr. Wade's handwriting. I have seen him write. The body of this is in Mr. Wade's handwriting; the signature is that of some other person. I find the record to contain a true copy of the original authority handed me by Mr. Wade. I filed the paper with the clerk of said Court of Common Pleas of Noble County, in said cause. I drew an answer for said defendant in said cause, at the request of said J. B. Wade, and caused it to be filed. I met Mr. Wade at Albion; he said he had a divorce case in court there, and showed me this authority for me to appear; I received it; Mr. Wade and the judge were conversing about the matter; Mr. Wade asked me to make certain admissions as to residence of the plaintiff; he told me the parties lived near Wolcottville, in Noble county, Indiana, and had for the last two or three years. I did so, and waived service of process in the answer, at Wade's request. I never saw the defendant in that, nor until here in court in this case. I received no compensation except the thanks of Mr. Wade."

Upon this evidence the counsel for the defendant made several requests for instructions to the jury, the substance of which was, that the record of divorce in Noble county was a complete protection to the defendant in this prosecution, even though the divorce may have been obtained by fraud, either in giving the court jurisdiction or in proving the allegations of the petition; that the question of fraud can not be raised except by the parties to the record, and consequently can not be gone into in this proceeding; and, if it could be, no evidence has been given in the case, having a tendency to establish it. The court declined these requests, and charged the jury as follows:

"1. The defendant in open court having admitted his first marriage to Mary Dawell, and afterwards his second marriage, in this county, to Minnie Kopp, his former wife being then still alive, as charged in the information against him, and evidence having also been offered before you to show that the said Mary Dawell and the said defendant were, at the time of said last marriage, and for a year or more next preceding had been, residents of this county of St. Joseph, which is not controverted by the said defendant, the charge of polygamy, alleged in the information, is prima facie made out against the defendant, and the burden of proof is upon him to show that prior to his said second marriage he had been legally divorced from said Mary Dawell, or to show some other legal excuse or justification under the statute.

"2. If you find from the evidence that at the time the alleged proceedings for a divorce were instituted, and a decree of divorce obtained in the Court of Common Pleas of Noble County, Indiana, introduced in evidence on behalf of the respondent in this case, the said Mary Dawell and the respondent were each of them actual residents of this State, and had been for a year or more immediately preceding the time of instituting the said proceedings, and the obtaining of the said decree, and were neither of them at the time residents of the State of Indiana, then the said decree of divorce is no defense to this prosecution.

"3. If you find from the evidence that the said first wife, Mary Dawell, and the said defendant, at the time the said proceedings were instituted, and the said decree of divorce obtained, in the Court of Common Pleas of Noble County, Indiana, were neither of them residents of said State of Indiana, but were residents of this State, and that said proceedings were commenced by agreement or collusion between the said parties, in this State, to obtain a divorce in the State of Indiana, then such decree is no defense in this prosecution.

"4. If you find from the evidence that said proceedings for a divorce in the Court of Common Pleas of Noble County, Indiana, were instituted by the said defendant in this case, William Dawell, without the knowledge or consent of his said first wife, Mary Dawell, and that she never actually appeared in the case, and never authorized any one to appear for her in said proceeding, then said decree is no defense to this action.

"5. If you find that either of the parties was a resident of Indiana at the time said proceedings were instituted and said decree of divorce obtained, and that both parties voluntarily appeared in the said suit, or authorized their appearance to be entered therein, then said decree is a perfect defense to this action."

The defendant insists that all these charges, except the last, were erroneous, and it is upon exceptions to these, and to the admission of the evidence upon which they were based, that we are now to review the trial.

It is worthy of notice at the outset that neither the first wife nor the attorney who nominally appeared for her in the State of Indiana, was made a witness on the trial. It was not in the power of the prosecution to make a witness of the first wife, except with defendant's assent; but he was at liberty under our statutes to call her if he saw fit to do so. Neither could the prosecution take the testimony of the attorney, by commission; but the defendant might have done so, if he supposed that any facts within his knowledge would be of service to the defense. These facts may be of no importance to the decision of this cause, but they are not to be overlooked when we come to consider the consequences to which the doctrines maintained on behalf of the defense must lead. The decree of divorce under consideration was obtained either by fraudulent collusion between the parties, or, if not by collusion, then the husband must have caused the complaint to be filed in the wife's name, and practiced a fraud upon her, as well as upon the law and the court. The appearance of the record, as I have already said, indicates collusion; but it is a most significant circumstance, that the only party who, by the evidence, is shown in any manner to have had anything to do with the case, is the defendant himself, who was the...