Commonwealth v. Custer

• Court: Superior Court of Pennsylvania
• Writing for the Court: KELLER, President Judge
• Citation: 21 A.2d 524
• Decision Date: 18 July 1941
• Parties: COMMONWEALTH v. CUSTER.

21 A.2d 524

COMMONWEALTH
v.
CUSTER.

Superior Court of Pennsylvania.

July 18, 1941.

21 A.2d 524

[Copyrighted material omitted.]

21 A.2d 525

Appeal No. 201, April term, 1941, from judgment at No. 80, May Sessions, 1940, of Court of Quarter Sessions, Somerset County; Norman T. Boose, President Judge.

Pearson Custer was convicted of adultery, and he appeals.

Judgment reversed and defendant discharged.

Argued before KELLER, P. J., and CUNNINGHAM, STADTFELD, RHODES, and HIRT, JJ.

Leland W. Walker, of Somerset, for appellant.

Archibald M. Matthews, Dist. Atty., of Somerset, for appellee.

KELLER, President Judge.

The defendant, Pearson Custer, has appealed from his conviction on an indictment charging adultery.¹ In lieu of the evidence introduced at the trial before President Judge Boose and a jury, counsel have submitted an agreed statement of facts under Rule 56 of this court. It is as follows:

"Pearson Custer and Alverda Shultz were married in Somerset County on the 31st day of October, 1926. After their marriage, they resided in Somerset County for six years, during which time they became the parents of two children. On or about the first of September, 1932, Pearson Custer went to the State of Illinois. His wife, Alverda, did not follow him to that State but remained in Pennsylvania.

"Custer obtained a divorce from the Circuit Court of Lee County, Illinois, on the 4th day of May, 1936. The cause of the divorce, as set forth in the decree of the court, was desertion for a period of two years and upwards. Alverda Custer was not served with process; service was had under the Statute of Illinois by publication and notice of said divorce proceedings was sent the respondent wife by registered mail. She did not contest the divorce or cause an appearance to be entered on her behalf, nor has she moved to vacate the decree in Illinois. She has never been in Illinois.

"On the 6th day of May, 1936, Custer contracted a second marriage in the State of Illinois. The parties resided together in Illinois as husband and wife until November 26, 1939. On the 12th day of June, 1937, a son was born in Illinois.

"Thereafter, on the 28th day of November, 1939, Custer and his wife by his second marriage returned to Somerset County, Pennsylvania, established a home and cohabited together as husband and wife. Here a child was born on February 12, 1940. On the 14th day of May, 1940, Alverda Custer, the wife by the first marriage of Pearson Custer, filed an information charging Custer with adultery and thereafter an indictment was duly returned and Custer convicted of the crime of adultery by a jury and duly sentenced by the Court."

The appeal is based on the refusal of the court below to recognize the validity of the divorce granted the defendant in Illinois. It, therefore, deals largely with "Conflict of Laws".

All of the facts justify the conclusion that the appellant made a bona fide change of domicil to Illinois in 1932. He then became a citizen of that state and was subject to and entitled to the benefit of its laws. Almost four years later, and strictly in accordance with the Illinois statute, he was divorced from the prosecutrix by the

21 A.2d 526

judicial act of that state, on a ground recognized as a ground for divorce by the laws of this state, and by proceedings which would have warranted a decree in this state, if the residences of the parties had been reversed. He was at liberty to remarry and did marry, in Illinois, the woman with whom he has now been convicted of committing adultery. The conviction, besides the result as to him, brands the woman he married as his mistress and renders their second child illegitimate.

The court below instructed the jury that the Illinois decree had no force or effect in Pennsylvania and that the only question was whether the sexual act was committed. In the circumstances of this case, we think this was error.

We will discuss the matter under two main heads: (1) The validity of the marriage in Illinois. (2) The effect to be given in this State to the Illinois decree of divorce.

(1) The Marriage was Valid in Illinois.

Disregarding for the moment the question of the effect in this State of the Illinois divorce proceedings, the fact remains that the marriage in Illinois was unquestionably valid there. The general rule is that a marriage valid where contracted is valid everywhere and this rule has long been upheld in this state. Phillips v. Gregg, 10 Watts 158, 168, 36 Am.Dec. 158; Van Storch v. Griffin, 71 Pa. 240, 244; In re Stull's Estate, 183 Pa. 625, 630, 39 A. 16, 39 L.R.A. 539, 63 Am.St.Rep. 776; In re McCausland's Estate, 213 Pa. 189, 193, 62 A. 780, 110 Am.St.Rep. 540; Schofield v. Schofield (No. 1), 51 Pa. Superior Ct. 564, 568. There are some exceptions to this rule. Corpus Juris (38 C.J, Marriage, § 3, p. 1277) states the proposition thus: "An exception to the general rule, however, is ordinarily made in the case of marriages repugnant to the public policy of the domicile of the parties, in respect of polygamy, incest, or miscegenation, or otherwise contrary to its positive laws."

The exception to the general rule is illustrated by In re Stull's Estate, supra. In that case, the decedent who had been divorced by his wife on the ground of adultery with a named person, went with his paramour to Maryland where they went through a marriage ceremony, solely to evade the ban on their intermarriage imposed by the Act of March 13, 1815, P. L. 150, sec. 9, 48 P.S. § 169. They returned immediately afterwards to Pennsylvania and lived here together until his death. The marriage, though valid in Maryland was held invalid here, and the second "wife" was refused letters of administration as his widow, on the grounds: (1) that their marriage was contrary to the positive statute of their domicil; (2) that it offended against the prevailing sense of good morals in their domicil, and (3) that it was a fraud on the government and people of Pennsylvania, since it was contracted in Maryland for the sole purpose of evading the law of their domicil. This case was distinguished in Schofield v. Schofield (No. 1), 51 Pa. Super. 564, allocatur refused, 51 Pa. Super. XXXVI, in which it was held that the marriage in Delaware, of first cousins, domiciled in Pennsylvania, who had gone there to be married in order to evade the ban of the Act of June 24, 1901, P.L. 597, 48 P.S. §§ 165, 166, on the marriage of first cousins, was valid in this State, and that the effort to evade the act did not entitle either party to divorce or annulment on that ground alone. Judge Porter distinguished the Stull case as one in which a personal incapacity to marry anywhere had been imposed by statute and the very living together of the parties was contrary to good morals.

Since the recognition of foreign marriages rests on comity only (Schofield v. Schofield, supra, 51 Pa. Super, at page 569), the surrounding circumstances may and should be freely inquired into in deciding whether to accord validity to them. The closest scrutiny of the facts in this case shows no reason for taking it out of the general rule. Appellant's residence in Illinois was one of over seven years' duration. He did not go there in order to get a divorce or to marry his second wife. His second marriage was not performed until after he had lived there nearly four years; nor was it performed, or the divorce procured there, to evade the laws of this State, since a divorce could have been procured here on the same grounds. The agreed statement of facts states that the prosecutrix "did not follow him to that State [Illinois] but remained in Pennsylvania." The courts of Illinois have found that the circumstances of their parting amounted to desertion by her, and the propriety of that conclusion is not questioned here. It is the law of this State,

21 A.2d 527

as well as of Illinois, that it is the duty of the wife to go with her husband. Since it is not contended on behalf of the Commonwealth that the appellant did not have valid grounds for divorce, either in Illinois or in this State, his living with the woman he married in reliance on the decree is not against public policy or offensive to good morals. See Com. ex rel. Thompson v. Yarnell, 313 Pa. 244, 169 A. 370, in which it was held that her marriage to a man who had procured a divorce in Mexico, did not render a mother unfit to be given custody of her child. See also Richardson's Estate, 132 Pa. 292, 19 A. 82, which held that after a divorce procured under conditions somewhat similar to those here involved, the respondent might, by delay or remarriage, lose the right to attack its validity.² That the legitimacy of a child is affected by this case is also a factor in sustaining the validity of the marriage. See In re Thewlis' Estate, 217 Pa. 307, 66 A. 519; In re Wile's Estate, 6 Pa. Super. 435; In re Holben's Estate, 93 Pa. Super. 472; In re Mays' Estate, 141 Pa. Super. 479, 15 A. 2d 569. Whether or not the marriage could validly have been performed here is not conclusive. Schofield v. Schofield, supra, 51 Pa. Super, at page 579. This marriage is therefore a sufficient...