Bynon v. State

• Decision Date: 12 May 1898
• Citation: 23 So. 640,117 Ala. 80
• Parties: BYNON v. STATE.
• Court: Alabama Supreme Court

23 So. 640

117 Ala. 80

BYNON v. STATE.

Supreme Court of Alabama

May 12, 1898

Appeal from circuit court, Walker county; James J. Banks, Judge.

Evans Bynon was convicted of bigamy, an appeals. Affirmed.

The appellant, Evans Bynon, was tried and convicted for bigamy. The material facts of the case and the rulings of the court reviewed on the present appeal are sufficiently stated in the opinion. The woman Annie, whom the testimony for the state tended to show was the first wife of the defendant, was examined as a witness for the defendant, and testified that she and the defendant had lived together for 13 years; that no marriage ceremony was ever performed marrying them; and that there had never been any agreement between her and the defendant that they should be husband and wife, or that they should live together as husband and wife. In the court's oral charge, he instructed the jury, among other things, as follows: "You may look to the facts that the defendant and the woman Annie lived together 13 years; that they lived in the same house and under the same roof that long; that a few years ago, when one of their children died, that the defendant and Annie went to the grave of the child together she leaning on his arm; and that they signed deeds as husband and wife,-in deciding what weight you will give to the testimony of the woman Annie." To this part of the court's oral charge the defendant separately excepted and also excepted to the court's refusal to give the following charge requested by him: "If the jury believe the evidence, they will find the defendant not guilty."

Coleman & Bankhead, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

BRICKELL C.J.

The appeal is taken from a judgment of conviction of bigamy. The second or alleged bigamous marriage was shown to have been ceremonial,-in strict conformity to the statutes. The prior marriage, if it existed, was to be deduced from facts and circumstances,-from the cohabitation and conduct of the parties. Though there is some diversity of judicial decision upon the question, the better doctrine, and that which prevails in this state, is that marriage, like any other fact involved in a judicial inquiry, may be proved by circumstances; direct or positive proof of the fact is not necessary. 1 Bish. Mar. & Div. § 487; 2 Whart. Ev. § 1297; 2 Greenl. Ev. § 461; Langtry v. State, 30 Ala. 536; Campbell v. Gullatt, 43 Ala. 57; Williams v State, 54 Ala. 131; Parker v. State, 77 Ala. 47.

Numerous exceptions were reserved on the trial in the court below to the admission of evidence upon the ground of irrelevancy. The undisputed fact was that the defendant and the woman alleged to be his wife, for more than 10 years prior to the second marriage, had lived under the same roof, having born to them 8 children. We cannot doubt that the fact that during this period she was known by his name, as were the children; that the children called him father, or by the synonym Pa; that, described as wife, she joined him in the execution and acknowledgment of a deed and of a mortgage conveying lands; and that during a large part of the time the mother of the woman resided with them,-were facts admissible upon the inquiry of marriage vel non. State v. Gonce, 79 Mo. 600. And it is to the admission of evidence of these facts the objection of irrelevancy was taken in the court below. Nor was it objectionable to permit a witness testifying to an acquaintance of several years...