Allen v. State

• Decision Date: 01 July 1939
• Docket Number: 27512.
• Citation: 3 S.E.2d 780,60 Ga.App. 248
• Parties: ALLEN v. STATE.
• Court: Georgia Court of Appeals

3 S.E.2d 780

60 Ga.App. 248

ALLEN v. STATE.

No. 27512.

Court of Appeals of Georgia, Division No. 1.

July 1, 1939

Syllabus by the Court.

The statute permitting 14 year old girls to marry makes a 14 year old girl a grown woman as to marriage and deals with her as such. Code 1933, § 53-102.

Common-law marriages are recognized in Georgia.

The elements of proof in a common-law marriage are cohabitation reputation, declarations, conduct and reception among friends and neighbors as married, all of which elements except cohabitation are shadows attending on cohabitation and should be simultaneous therewith.

A 19 year old defendant taking a 15 year old girl away from her parents against their will and without their consent for bona fide purpose of marrying her was not guilty of kidnapping where defendant was not under disability to marry, and girl freely consented, and no force or fraud was used against either her or her parents, and common-law marriage was consummated by procuring a license and living together as husband and wife with defendant's parents without a ceremony after third person informed them that they were legally married. Code 1933, §§ 26-1602, 53-102.

Marriage is favored in law, and statutory provisions establishing forms are to be strictly interpreted, and legislation commanding formalities and even punishing the parties themselves will not render a marriage had in disregard of it void, unless statute expressly or by necessary implication declares such consequence.

A 19 year old boy and 15 year old girl who procured marriage license and lived together as husband and wife without ceremony and represented that they were married after third person informed them that they were legally married consummated a "common-law marriage," where girl gave her consent and there were no legal disabilities on the part of either to contract matrimony and neither of them repudiated the marriage. Code 1933, § 53-102.

Under statute, a common-law wife is incompetent to testify against her common-law husband. Code 1933, § 38-1604.

In kidnapping prosecution against 19 year old boy who took a 15 year old girl away from her parents against their will and without their consent for bona fide purpose of marrying her the girl was incompetent to testify against defendant where she had become his common-law wife. Code 1933, §§ 26-1602, 38-1604, 53-102.

1. This State recognizes common-law marriages.

2. The "elements of proof--namely, cohabitation reputation, declarations, conduct, and reception among friends and neighbors as married--are commonly, in a perfect case, found in combination. All the latter ones are shadows attending on cohabitation, and they should be simultaneous therewith. Together they make a complete case; while in legal doctrine there is no absolute necessity of exhibiting all the shadows in connection with that from which they fall, cohabitation." 1 Bishop on Marriage, Divorce, and Separation, 408, § 939.

3. Since marriage is favored in law, statutory provisions establishing forms are to be strictly interpreted, not being encouraged by the courts; and "legislation commanding formalities, even punishing the parties themselves, will not render a marriage had in disregard of it void, unless the statute expressly or by necessary implication declares this consequence."

4. Where a female is over 14 years of age and is competent in all other respects to contract marriage, it is not kidnapping under the code, § 26-1602, for a man, not himself under any disability, to lead or carry away from her parents, against their will and without their consent, for the bona fide purpose of marrying, which marriage is actually consummated under the common law (such transaction not being merely a sexual commerce between marriageable parties, and there being no signs that the transaction was not matrimonial), the girl herself freely consenting, and no force or fraud being used by the man either against her or her parents. "As to marriage the law makes her a grown woman and deals with her as such."

5. A common-law wife is incompetent to testify against her common-law husband under the Code, § 38-1604. The trial judge committed reversible error in not excluding her as a witness.

6. The evidence did not warrant the verdict.

No appearance for defendant in error.

Hubert Fields Rawls, of Nahunta, for plaintiff in error.

MacINTYRE Judge.

W. F. Allen was indicted for kidnapping, under the Code, § 26-1602, which declares: "Any person who shall forcibly, maliciously, or fraudulently lead, take, or carry away, or decoy or entice away, any child under the age of 18 years from its parent or guardian, or against his will, or without his consent, shall be guilty of kidnapping." The jury returned a verdict of guilty, and the defendant excepted to the overruling of his motion for new trial.

The indictment charged that the defendant "did then and there unlawfully and with force and arms, maliciously, feloniously, and fraudulently lead, take, carry away, decoy, entice away one Elizabeth Johns, she being under eighteen years of age, from her parents, *** against their will and without their consent." Elizabeth Johns, the person alleged to have been kidnapped, testified, as a witness for the State, that she was 15 years old at the time of the alleged kidnapping; that she went to the house of her brother in the company of her mother on the night in question, and there she saw the defendant. At first she swore that she did not know him; then, that she knew him slightly. However, she finally admitted that she had known him practically all her life; that he said he was nineteen years old; that he and she went out on the porch and talked for about an hour. That they had been seeing each other quite a bit and she finally agreed to go with him to Folkston for the purpose of marrying him; that her mother did not know she was leaving or did not give her consent thereto; that Lula Allen, the defendant's sister, and Melvin Crews went with them; that the four went to Folkston, and there the defendant got a license from Judge McQueen for "Elizabeth Johns and W. F. Allen;" that they went to Mr. Eddie Crews, the Justice of the Peace, and "He said we were married in Folkston, and all we would have to do would be to give him the papers, and W. F. gave them to him, and they went to the end of the porch and talked. Mr. Eddie Crews looked at this marriage license and said 'It is all right. You were married in Folkston,' yes, sir." She testified that she and the defendant went back to his father's house about daylight, his sister and Melvin Crews being with them all the time; that the defendant told his parents "I [witness] was his wife; he said we were married. *** During the week I stayed there as this boy's wife, and people coming and going, and I represented myself to be married. I considered this boy my husband. He didn't run me away from there. *** And me and this defendant both said we were married. We considered ourselves that week married, to this boy. As his wife, I lived with him that week as his wife. *** I did not get my father's and mother's consent to go." The parents of Elizabeth Johns testified that it was against their wills for her to go off with the defendant.

The question presented in the instant case is whether or not there was a valid marriage under the laws of this State and did the evidence warrant a conviction of kidnapping under Code, § 26-1602? If a common law marriage had been consummated, as contended by the defendant, he could not be guilty of kidnapping under said section, and it would necessarily follow that it was error to allow the witness alleged to be defendant's common-law wife, to testify. Under the Code, § 53-102, a female at least 14 years of age and a male 17 years of age, not laboring under any of the disabilities enumerated in that section, are each capable of contracting a valid marriage. Therefore if, as here, the girl is 15 years of age, it is fair and legitimate for a man to gain her...