Ashley v. State
| Decision Date | 29 January 1896 |
| Citation | 109 Ala. 48,19 So. 917 |
| Parties | ASHLEY v. STATE. [1] |
| Court | Alabama Supreme Court |
Appeal from circuit court, Henry county; J. M. Foster, Judge.
Felix Ashley was convicted of bigamy, and appeals. Reversed.
The appellant in this case was indicted, tried and convicted for bigamy, and sentenced to the penitentiary for three years. On the trial of the cause, the state introduced evidence tending to show a prior marriage by the defendant, which was solemnized on December 1, 1870, and also offered to introduce in evidence a marriage license which was signed "Dan Gordon, Judge of Probate," and dated May 20, 1895 authorizing the celebration of the rites of matrimony between the defendant and Mrs. M. E. Richardson. To this marriage license was attached the certificate of a justice of the peace that the parties therein were married on May 21, 1895. The facts attendant upon the issuance of this marriage license are sufficiently stated in the opinion; and after the testimony of the justice of the peace tending to show the circumstances of the issuance of said marriage license, the defendant moved to exclude from the jury as evidence, the paper purporting to be such license, on the ground that it was not a valid marriage license, but was void; and that taken in connection with the admitted facts, said paper does not constitute such a marriage license as that a prosecution for bigamy can be sustained. The court overruled this motion allowed the paper purporting to be the marriage license in evidence, and to this ruling the plaintiff duly excepted. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give it as asked: "If the jury believe the evidence they will find the defendant not guilty."
J. J Altman, for appellant.
Wm. C Fitts, Atty. Gen., for the State.
The objection to the introduction of the alleged marriage license, under which the alleged second marriage was solemnized, is based on the proof made by the justice of the peace, who solemnized said alleged second marriage, under the license issued, and who swore to that fact, as well as to the additional facts, that the judge of probate of Henry county, did not issue the license under which he solemnized the marriage, and did not know of its issuance, until it was returned executed by him, the justice; that he, the witness, had received from the judge a lot of blank marriage licenses, and was told by him to issue them, from time to time, to parties who might apply to him for them;...
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Ex parte State ex rel. Ala. Policy Inst.
..." '[t]he issuance of a marriage license by a judge of probate is a ministerial and not a judicial act.' " (Quoting Ashley v. State, 109 Ala. 48, 49, 19 So. 917, 918 (1896).)There are several problems with attempting to conclude that this Court lacks jurisdiction on the basis of such a purpo......
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