Bailey v. State
| Decision Date | 26 April 1893 |
| Docket Number | 4518 |
| Citation | 55 N.W. 241,36 Neb. 808 |
| Parties | THOMAS BAILEY v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Seward county. Tried below before NORVAL, J.
REVERSED AND REMANDED.
Norval Bros. & Lowley, for plaintiff in error.
George H. Hastings, Attorney General, for the state.
The plaintiff in error was informed against in three counts, the first charging him with deserting his wife, Matilda Bailey on the 1st day of January, 1887, and from that day until March 1, 1888, living and cohabiting with one Della Brong in a state of adultery. The second count charges him with committing adultery with Della Brong on February 18 1888; the third, with keeping Della Brong and wantonly cohabiting with her in a state of adultery from November 7 1886, to March 1, 1888, while being with his lawful wife, Matilda Bailey. He was acquitted upon the first count and found guilty upon the second and third. The sentence was that plaintiff in error should pay a fine of $ 200 and be committed to the county jail for the period of three months upon the second count, and also that he pay a fine of $ 200 and be committed for a like period upon the third count.
1. The first question presented relates to the sufficiency of the information, which was verified by the oath of Matilda Bailey before a notary public in Lancaster county. It is urged that a valid oath is essential to an information, and that the district court acquired no jurisdiction under an information not verified before a magistrate. There can be no doubt that a verification before a notary public is insufficient ( Richards v. State, 22 Neb. 145, 34 N.W. 346), but this was a defect open merely to a motion to quash and was waived by pleading to the information. It was not jurisdictional. (Davis v. State, 31 Neb. 247, 47 N.W. 854.)
2. The next point urged is that there was not sufficient evidence to establish a marriage between plaintiff in error and Matilda Bailey, who is alleged in each count to be his lawful wife. It appears that plaintiff in error and Matilda Bailey, then known as Mrs. Tyson, met at Lyons, Iowa, in 1866, plaintiff in error going to the house of Mrs. Tyson to board. They lived together in Lyons until about 1869, when they came to Nebraska together and soon after took up a homestead. They seem to have lived together until 1887, when Matilda left him. One child, still living, was born to them. Matilda testifies in one place that plaintiff in error came to board and Again: "He said he would be true to me; that if he married me he couldn't be truer to no one than he would be to me, and that it was just as good as to go and get married." Again:
Q. Will you state to this jury how you were married?
A. Yes, sir.
Q. How?
A. Why, he promised that he would be my husband and I promised to be his wife.
Q. Is that all of it?
A. Yes, sir, and we talked together.
Q. You talked together?
A. Yes, sir.
Q. And you thought you were married?
A. Yes, sir.
Further: "He said it was a mere matter of form getting married, and if I would live with him he would live with me, and I told him I would, I guess." "Yes, sir, I told him I would." This conversation, she says, occurred upon a Sunday afternoon, about the middle of August, 1866. She also says that their relations were kept secret in Iowa because of the opposition of her older children. They certainly lived from that time until the separation in 1887 as man and wife, and she has been known to neighbors and friends as Mrs. Bailey ever since coming to Nebraska. There is also some evidence of Bailey's introducing her to strangers as his wife. It cannot be denied that there are many things in her own testimony and elsewhere in the record tending to discredit her story, but it is the province of the jury to pass upon the credibility of witnesses, and if her testimony above quoted establishes a marriage the verdict cannot be disturbed on the ground of insufficient evidence. ( Dutcher v. State, 16 Neb. 30, 19 N.W. 612.)
Marriage is, in Nebraska, a civil contract to which the consent of parties capable of contracting is essential. (Comp. Stats., ch. 52, sec. 1; Gibson v. Gibson, 24 Neb. 394, 39 N.W. 450.) When contracted in another state a marriage must here be held valid if valid by the laws of the state where contracted. (Comp. Stats., ch. 52, sec. 17.) There was no proof of the law of Iowa, and in the absence of proof it will be presumed to be in accord with our own. (Lord v. State, 17 Neb. 526, 23 N.W. 507.) Wherever treated as a civil contract it is sufficient to constitute a marriage that the minds of the parties meet in a common consent at the same time. No particular form of expression is required.
It is claimed that in cases like that at bar there must be direct evidence of the marriage. This may be true, but Mrs Bailey's testimony is direct evidence of the fact. The rule, when examined in the light of the authorities, only forbids in such cases the establishing of a marriage by proof of cohabitation, reputation, and "holding out." The reason is that while ordinarily such evidence is sufficient because the law places that interpretation upon ambiguous acts which favors innocence, and will not assume that a cohabitation is illicit if by presuming marriage it would be lawful, yet in a prosecution for adultery this presumption conflicts with the presumed innocence of the prisoner of the crime of which he is charged, and therefore such evidence in such cases cannot alone establish a marriage. The essentials of a valid marriage are in all cases the same, the distinction being in the mode of proof alone. Mrs. Bailey's testimony is direct and competent evidence in this case, and if believed, establishes a contract as binding for all purposes...
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