Cox v. State

• Decision Date: 16 June 1898
• Citation: 23 So. 806,117 Ala. 103
• Parties: COX v. STATE.
• Court: Alabama Supreme Court

23 So. 806

117 Ala. 103

COX v. STATE.

Supreme Court of Alabama

June 16, 1898

Appeal from circuit court, Jackson county; J. A. Bilbro, Judge.

Charles Cox was convicted of bigamy, and appeals. Affirmed.

Tally &amp Proctor, for appellant.

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

BRICKELL C.J.

The indictment is founded on the last clause of section 4406 of the Criminal Code of 1896, which in its entirety reads "If any person having a former husband or wife living marries another, or continues to cohabit with such second husband or wife in this state, he or she must, on conviction be imprisoned in the penitentiary for not less than two, nor more than five years." The statute was originally enacted as part of the Penal Code of 1841 (Clay's Dig. p. 432, §§ 4, 5), and, with changes of verbiage and structure not affecting its construction, has been incorporated in all subsequent revisions or codifications of the statute (Code 1852, §§ 3232, 3233; Rev. Code 1867, §§ 3599, 3600; Code 1876, §§ 4185, 4186; Cr. Code 1886, §§ 4016, 4017). In Beggs v. State, 55 Ala. 108-110, the first case in which it became necessary to construe the statute, it was said: "When this statute is read in connection with the common law existing at the time of its enactment, it is apparent two offenses are thereby created; or, rather, the common-law offense of bigamy is declared, and the punishment which must follow conviction defined, and a statutory offense, the continuance of cohabitation under the vicious marriage, making bigamy, punishable as the latter offense, is created. The offense of bigamy remains, indictable and punishable at the place of its commission. If the second marriage was in this state, the county of its commission is the only place in which an indictment for the offense will lie. As to this offense, the common law is not changed. Necessity for a change is obviated by the creation of the new offense,-the cohabitation under the second marriage. If the marriage was in another state, and the cohabitation in this state, the wrong done here is the evil example of persons living together as husband and wife, who do not in fact and in law sustain that relation,-the open continuance of an adulterous connection."

The evidence without conflict shows that the defendant, having a wife living, he and she being residents of the county of Jackson, in this state, married Martha Hughes, in the state of Tennessee, subsequently living with her as his wife in the county of Jackson, then removing to the state of Tennessee and there living with her as his wife. About five weeks before the finding of the indictment, they returned to the county of Jackson, lived together as man and wife under the same roof, occupied the same bed, acknowledging each other as husband and wife, and in all respects so conducted themselves in the presence of the community. The defendant introduced evidence tending to show that, six or seven years prior to the trial, said Martha, by reason of a serious surgical operation to which she had been compelled to submit, was incapacitated from sexual intercourse, and since the operation he had not had sexual intercourse with her, and for more than three years had not such intercourse with her in the county of Jackson. Upon this phase of the evidence, the defendant requested several instructions, basing the right to an acquittal upon the proposition that continuous sexual intercourse is an indispensable element of the statutory offense. We do not doubt that sexual intercourse is a necessary ingredient of the statutory offense. From its original enactment, through all subsequent revisions or codifications of the statute, the statute has been associated with other statutes creating or declaratory of offenses of which such intercourse is the essential, criminating element. Originally, it was associated with the statute denouncing the offense of a man and woman living together in adultery or fornication, and the statute defining incest, and fixing its punishment. Clay's Dig. pp. 429, 430, §§ 2-6. Without now tracing the statute through subsequent revisions or codifications, it will be found in the Criminal Code of 1886 (sections 4012-4019), associated with the statutes in relation to incest, living in adultery or fornication, seduction, and miscegenation. Apart from the association of the statute with other statutes, the terms of the statute, "continues to cohabit with such second husband or wife," imply or involve sexual intercourse. The word "cohabit," and its derivative, "cohabitation," are words of large signification. "Cohabit," in its general sense, is defined in the Century Dictionary: "To dwell together; inhabit or reside in company, or in the same place or country." And a specific definition is: "To dwell or live together as husband and wife; often...