Bennett v. State

• Decision Date: 20 November 1911
• Docket Number: 15,344
• Citation: 56 So. 777,100 Miss. 684
• Court: Mississippi Supreme Court
• Parties: JAMES G. BENNETT v. STATE

56 So. 777

100 Miss. 684

JAMES G. BENNETT v. STATE

No. 15,344

Supreme Court of Mississippi

November 20, 1911

APPEAL from the circuit court of Yazoo county, HON. W. A. HENRY Judge.

James G. Bennett was convicted of bigamy and appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed. Suggestion of error overruled.

E. L Brown and Barbour & Henry, for appellant.

In our reports, without a single exception, every case to be found supports the rule that the party assailing the validity of a marriage has the burden to show that there was no divorce although such burden involves proof of a negative. Hull v. Rawls, 27 Miss. 471; Spears v. Benton, 31 Miss. 554; Gibson v. State, 38 Miss. 313; Collins v. Wilkie, 48 Miss. 496; Railway v Beardsley, 79 Miss. 417; and K. of P. v. Tucker, 92 Miss. 505. All cases from 1854 to 1909, announce the rule, with no intimation that there is any sort of exception of it. And all of these cases place the rule, whether in civil or criminal cases, upon the presumption of innocence and the presumption in favor of the legality of a marriage shown to have taken place.

The rule with reference to pleading exceptions contained in statutes, invoked to avoid our contention, squarely supports us. It is thus stated in Thompson v. State, 54 Miss. 744.

"It is often difficult to determine when an indictment under a statute defining an offense, and containing exceptions, should by express averment negative the exceptions, and when they may be omitted and left to the defendant to set up by plea. It may be said generally, that where the exception is so engrafted in the enacting clause of the statute that the offense cannot be described without meeting and negativing the exception, it must always be set out in the indictment; but that where the exception is contained in some other statute, or is clearly separable from the offense, and the crime may be described without reference to the exception, then the latter is a matter of defense, and need not be mentioned in the indictment. Steel v. Smith, 1 Barn. & Ald. 94; State v. Abbey, 29 Vt. 60; 1 Bishop Crim. Proc. 631 et seq.; United States v. Cook, 17 Wall. 168."

The case, cited by this court, of the United States v. Cook, 17 Wall. 168, cites many illustrations of the application of the rule, and criticises the application of it in the Massachusetts case, Com. v. Hart, 11 Sus. 132, and this court in Railroad v. Beardsley, 79 Miss. 417, says the Massachusetts court adopts a curious line of reasoning in Commonwealth v. Boyer, 7 All. 306.

It is too plain for argument that the rule with reference to pleading exceptions does not aid the state, because the crime cannot be described without affirming the existence of a wife, at the time of the second marriage, and such affirmation may be made, either by alleging the first marriage and negativing a divorce, or by alleging the first marriage, and affirmatively alleging the relation of husband and wife at the time of the second marriage. One or the other method must be employed, and the indictment did both in this case.

"In criminal cases, the burden of proof never shifts; before a conviction can be had, the jury must be satisfied, from the evidence, beyond a reasonable doubt, of the affirmative of the issue presented by the indictment." 2 Enc. L. (1st. Ed.), 657, and the burden of proof can be on the defendant only to prove "an independent exculpatory fact." 1 B. 657, note.

Now, the only "independent exculpatory facts" contained in section 1052 are those with reference to the absence of the husband or wife. Such absence "exempts from the penalty of the statute," but the second marriage is, nevertheless, bigamous, if the first one has not been dissolved. Gibson v. State, 38 Miss. 322. But, if the first marriage has been dissolved by the decree of a competent court, for any one of the reasons provided by law, the second marriage can not be bigamous. Crawford v. State, 73 Miss. 177. The reason is that, however long the absence, the parties are still husband and wife, but, after decree of the court, they are not, and bigamy can be predicable only of the existence of one wife and a marriage ceremony.

But, the state assumed the burden of proving the negative, if we can possibly be mistaken, upon the foregoing considerations, as to where the burden of proof lies. Upon elementary principles of pleading, the allegation that no divorce was had bound the state to prove the negative. Broughton v. State, 71 Miss. 90, without expressly adverting to those elementary principles, settles this case. It was there assumed that the insertion of "needless averments" in the indictment placed upon the state the burden of proving those averments; and the prediction was made that such assumption of the burden would make "the prosecution more difficult of successful accomplishment." 5 Ency. Law (2nd Ed.), 28, "Providing Negative," and notes.

Carl Fox, assistant attorney-general, for appellee.

It is true in civil cases the rule is well established in this state that the burden of proof is upon a person who attacks the validity of a marriage ceremony, on the ground of a former marriage, to show that there was no divorce from the first wife.

It does not follow necessarily, however, that that is the rule in prosecution for bigamy under section 1051 of the Code of 1906. Leaving out that part of the section which is not relevant in this case, it is as follows:

"Every person having a husband or wife living, who shall marry again, . . . except in the cases hereafter named, shall be guilty of bigamy. . . ."

It is perfectly true, of course, that if the first marriage has been dissolved, there is no bigamy in a second marriage. If, as contended by counsel for appellant, the legislature intended that the burden should be upon the state, to prove no divorce, why does not section 1051 have the words "and not divorced," or words meaning the same thing, after the word "living?" Section 1052, of the Code is as follows:

"The last section shall not extend to any person,

"(1) Whose husband or wife shall have been absent for seven successive years, without being known to such person, within the time, to be living;

"(2) Nor to any person whose husband or wife shall have absented himself or herself from his or her husband or wife, and remained without the United States continually, for seven years;

"(3) Nor to any person by reason of any former marriage, which shall have been dissolved by the decree of a competent court, unless the said degree provide that such person shall not be at liberty to marry again;

"(4) Nor any person, by reason of any former marriage which shall have been pronounced void by the sentence or decree of a competent court, for the nullity of the marriage contract;

"(5) Nor to any person by reason of any former marriage, contracted by such person within the age of legal consent, and which shall have been annulled by the decree of a competent court."

It seems plain that the exceptions, as they are called in the title of section 1052, are defenses; that the legislature never intended that the burden should be upon the state to prove, in any case, that it did not come within one of those exceptions. Such a construction of sections 1051 and 1052, would make it impossible in a great many cases to convict. The construction which counsel for appellant would have the court put upon these sections makes it impossible to convict anyone under the circumstances surrounding this case.

In defining the crime, as I have already pointed out, the legislature confined it to those persons "having a husband or wife living who have married again." The rule contended for by counsel for appellant is well established in civil cases, but it is also well established that that rule does not apply in prosecutions for bigamy. Fletcher v. State, 81 N.E. 1083, 169 Ind. 77, 124 Am. St. Rep. 219; Sokel v. People, 72 N.E. 382, 212 Ill. 238; State v. Goulden, 47 S.E. 450, 134 N.C. 743; Commonwealth v. Boyer, 89 Mass. (7 Allen) 306; Fleming v. People, 27 N.Y. 329; People v. Spoor, 85 N.E. 207, 235 Ill. 230. See, also, State v. Kniffen (Washington, 1906), 87 P. 837; Bishop on Statutory Crimes (3d. Ed.), sec. 608; Underhill on Criminal Evidence, sec. 405, p. 683; Hanley v. State, 21 Ohio Cir. Ct. Rep. 584, O. C. D. 488, cited in a note to Pittinger v. Pittinger, 89 Am. St. Rep. 200.

In Gibson v. State, 38 Miss. 338, among others, the court granted the following instructions for the state;

"That the offense of bigamy upon the part of a man consists in marrying another woman, having a wife living at the time of his second marriage; and if the jury believe from the evidence in the cause that the defendant was legally married to Maria Williams on the 1st of May, 1855, and that afterwards, and during the life of said Maria (he knowing her to be living), defendant was married to Ann Cochran, as charged in the indictment, then they ought to find the defendant guilty of bigamy as charged."

The court held that this instruction was correct.

It is argued by counsel for appellant that the fact that there has been no divorce from the first marriage is a constituent part of the offense of bigamy. Their argument simply amounts to this, that if there is a divorce from the first marriage then the second marriage is not bigamy. That is all very true, but the immediate result of such a rule if established by the courts, would be that the state in every prosecution of crime would carry the burden of proof of the non-existence of all possible offenses. A moment's consideration of the various crimes, and of their defenses, will show that this is true, and that the argument of counsel for appellant is fallacious. If the appellant was divorced...