Barton v. State

• Decision Date: 24 October 1932
• Docket Number: 30098
• Citation: 165 Miss. 355,143 So. 861
• Court: Mississippi Supreme Court
• Parties: BARTON v. STATE

143 So. 861

165 Miss. 355

BARTON v. STATE

No. 30098

Supreme Court of Mississippi

October 24, 1932

Suggestion Of Error Overruled November 21, 1932.

(In Banc.)

1 WITNESSES.

To have valid common-law marriage, making wife's testimony incompetent against husband, parties must intend in good faith to live together permanently as husband and wife.

2. SEARCHES AND SEIZURES.

Defendant hearing and acquiescing in statement that he was only visitor, could not complain of search made of house, even if he had right to possession.

3. SEARCHES AND SEIZURES.

Visitors are not within protection of constitutional provision against unlawful search and seizure.

Suggestion Of Error Overruled November 21, 1932.

APPEAL from circuit court of Bolivar county.

HON. W. A. ALCORN, Judge.

Columbus Barton was convicted of murder, and he appeals. Affirmed.

Affirmed.

W. B. Alexander, Jr., of Cleveland, for appellant.

When the person against whom the search was directed, and the head of the house, such as the husband, is present in person and in possession himself, no one can waive his rights and consent to a search except the defendant himself, who is in possession. Certainly it does not seem that a mere agent, servant, or even wife can waive man's rights in this regard. When the man himself was present, and we do not believe there is any case holding that such a waiver can be made for a man by another except when the man is absent, and someone else is lawfully in the possession and control of the premises at the time.

Ellerson's Cofer v. State, 118 So. 613; 24 R. C. L., par. 27, p. 723.

A common law marriage in Mississippi is valid when the parties agree to be man and wife in praesenti, and this is followed up by co-habitation.

The fact that the common law wife importunes her husband to marry her does not necessarily confute the existence of the present intention but may merely indicate that she thought a religious ceremony in the presence of a priest necessary or desirable.

Procita v. Procita, 190 N.Y.S. 21.

The parties must intend to assume the marriage relation eo instante, but a present intention to assume the marriage relationship, although coupled with a desire to solemnize a formal marriage at a future date, is a valid common law marriage.

38, C. J. 1318.

Where two persons enter into a consensual marriage, although believing that a formal solemnization was necessary it was held that a valid marriage had been contracted.

Richard v. Brehm, 73 Pa. 140, 13 Am. R. 733; 38 C. J. 1316.

A common law marriage is valid in Mississippi.

Sims v. Sims, 122 Miss. 745, 85 So. 73; Taylor v. State, 52 Miss. 84; Floyd v. Denny Calvert, 53 Miss. 37; Maryland v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822; Herd v. Herd, 194 Ala. 613, 69 So. 885, L.R.A. 1916B, 1243.

We believe that the burden was on the state to prove that Barton had a former living wife, from whom he had not been divorced, and that the wife also had not secured any divorce, and the state has not met or attempted to meet this burden.

The presumption in favor of a marriage, when it is once shown, is one of the strongest known to the law. It is all but a conclusive presumption. It is by far the strongest of the disputable presumptions.

Every intendment of the law is in favor of matrimony. When a marriage therefore, has once been shown, however celebrated, whether regularly or irregularly, or however proved, whether directly or by circumstantial evidence, the law raises a strong presumption in favor of its legality.

1. Bishop, Marriage and Divorce, section 457.

The law requires the party who asserts the illegality of a marriage to take the burden of that issue, and prove it, though it may involve the proving of a negative.

Boulden v. McIntyre, 119 Ind. 574, 12 Am. St. Rep. 453; Klein v. Laudman, 29 Mo. 259; Hadley v. Rash, 21 Mont. 170, 69 Am. St. Rep. 649; Ervin v. English, 61 Conn. 502; Johnson v. Johnson, 114 Ill. 611, 55 Am. St. Rep. 883; Carroll v. Carroll, 20 Tex. 731; Cartwright v. McGowan, 121 Ill. 388, 2 Am. St. Rep. 105; Teter v. Teter, 101 Ind. 129, 51 Am. St. Rep. 742; Hadley v. Rash, 69 Am. St. Rep. 649; Wilkie v. Collins, 48 Miss. 496; Railroad Co. v. Breadsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; K. P. Lodge v. Tucker, 92 Miss. 501, 46 So. 51; Howard v. Kelly, Sheriff, 111 Miss. 285, 71 So. 391; Hickman v. Hickman, 126 Miss. 469, 89 So. 6; Pittinger v. Pittinger, 28 Col. 308, 64 P. 195, 89 Am. St. Rep. 193.

Herbert Nunnery, Assistant Attorney-General, for the State.

It was not necessary for the officers to ask Barton's consent to search this house after receiving the consent of witness, Salena Moore, who was the original occupant of the house and worked with Carter, but had full control and access to same.

Certainly it cannot be said that the appellant was in legal possession of the premises, or had full and complete control of the premises.

It is needless to set up from the record the relation and association between Salena and Barton. It only existed about a month, and this being more or less irregular. I am frank to concede that in many instances a common-law marriage is recognized, but it is certainly under different circumstances as presented here in this record.

Cohabitation of a couple as husband and wife pursuant to an expressed agreement does not constitute a valid common-law marriage, where a man with whom she formerly lived as his wife, and from whom she has not been divorced is still living at the time of the agreement.

Blanks v. So. Ry., 35 So. 570, 82 Miss. 703; Clark v. Clark, 76 So. 638, 115 Miss. 726.

It can be safely said, in view of the many women that this appellant has lived with, some even using his name in his presence, that this witness, Salena Moore, could not be his common-law wife.

Argued orally by W. B. Alexander, Jr., for appellant, and by Herbert Nunnery, for appellee.

Griffith, J. Anderson, J., dissenting. Ethridge, J., dissenting.

OPINION

Griffith, J.

Appellant was convicted of murder and sentenced to death. On his appeal he has submitted twelve assignments of error, all of which we have carefully examined. Two of these assignments have presented points which have not been free of difficulty, and we now briefly refer to them.

It was objected on the trial that the state's witness, Salena Moore, was not a competent witness, because it was asserted, and attempted to be proved, by appellant that said witness was and is the common-law wife of appellant. The trial judge permitted full proof on this issue, and, after mature consideration and review of all the evidence, as shown by his opinion dictated into the record, he overruled the objection.

It is, of course, among the essentials of a valid common-law marriage that both parties must intend in good faith to live together in the relation of husband and wife, and that the union shall be permanent and exclusive of all others. 38 C. J. 1317, 1318. The agreement between the parties must be unequivocal and free from any reservations, mental or otherwise, to the full extent that, when consummated by cohabitation, nothing less than a decree of divorce pronounced by a court of competent jurisdiction can dissolve the relation. In order that there may be a valid common-law marriage, neither of the parties shall entertain the thought or intention that either of them could or would terminate the relationship without the consent of the state obtained in a valid proceeding in divorce.

Upon a careful examination of all and every part of the evidence bearing upon this issue, we have concluded that the circumstances, and particularly those which are the more significant in probative force, point to the probability that the arrangement between the parties here, whatever it was, did not measure up to the essential requirements above mentioned, and that the trial judge was justified by the evidence in his finding that there had been no marriage between these parties. In any event, we cannot say that the judge was clearly wrong, or that his decision was against the overwhelming weight of all the evidence produced before him on the subject.

The other assignment refers to the search of the house where the appellant was actually residing at the time. When the officers arrived at this house a few hours after the homicide, they first saw there only the woman, Salena Moore. This house had been jointly rented about March 1st by the woman, Salena Moore, and one Ben Carter, and it is said that the woman occupied...