Ex parte Brinkman

• Decision Date: 20 March 1923
• Docket Number: 4865.
• Citation: 116 S.E. 757,93 W.Va. 351
• Parties: EX PARTE BRINKMAN.
• Court: West Virginia Supreme Court

116 S.E. 757

93 W.Va. 351

EX PARTE BRINKMAN.

No. 4865.

Supreme Court of Appeals of West Virginia.

March 20, 1923

Submitted March 12, 1923.

Syllabus by the Court.

Under section 1, c. 149, Code (Code 1913, § 5305), providing that "any person being married, who, during the life of the former husband or wife, shall marry another person in this state, or if the marriage with such other person take place out of this state, shall thereafter cohabit with such other person in this state, shall be confined in the penitentiary not less than one nor more than five years," when the second marriage is celebrated within this state, the offense is committed in the county in which such marriage takes place.

In such case the courts of the county in which such second marriage is solemnized alone have jurisdiction to try and punish the offender.

A person held in custody by the sheriff of Kanawha county to await the action of the grand jury of that county, on a warrant issued by a justice of the same county charging him with having entered into a bigamous marriage in Logan county, and thereafter cohabiting with the spouse of such marriage in Kanawha county, should be discharged on habeas corpus.

Petition of E. L. Brinkman for a writ of habeas corpus to secure discharge from imprisonment. Writ awarded, and petitioner discharged.

Geo. D Moore, of Charleston, for petitioner.

H. W Houston, C.J. Van Fleet, and T. C. Townsend, all of Charleston, for respondent.

LITZ J.

The petitioner by habeas corpus seeks discharge from imprisonment in the county jail of Kanawha county, where he is confined to await the action of the grand jury of that county on a charge of bigamy.

On the 25th day of February, 1923, petitioner was arrested in the city of Charleston, Kanawha county, and confined in the city jail on a warrant issued by W. W. Wertz, police judge of Charleston and ex officio justice of the peace of Kanawha county, charging that he did, on the ______ day of December 1922, in the city of Charleston and county of Kanawha,

"unlawfully and feloniously commit bigamy with one Osie Kirk, in this, to wit, that on the ______ day of ______, 1917, he legally married one Violet Campbell, in the county of Franklin and state of Ohio, and without being legally or otherwise divorced from her did, on the ______ day of ______, 1922, marry one Osie Kirk, in the county of Logan, state of West Virginia, and did cohabit with the said Osie Kirk as his wife in the county of Kanawha and state of West Virginia."

At a preliminary hearing upon said warrant before the said W. W. Wertz, police judge and ex officio justice of the peace, March 5, 1923, the petitioner moved a dismissal of the warrant, and his discharge, on the ground that the offense was alleged to have been committed in Logan county; but the justice overruled the motion and committed him to the jail of Kanawha county, where he is yet confined to await the action of the grand jury of that county. Petitioner asserts in his petition that the warrant under which he was tried and held charges no offense against him in Kanawha county, and therefore confers no jurisdiction upon any court of that county to try and punish him.

The offense of bigamy is purely statutory, and is defined in section 1, chapter 149, Code (Code 1913, § 5305), as follows:

"Any person being married, who, during the life of the former husband or wife, shall marry another person in this state, or if the marriage with such other person take place out of this state, shall thereafter cohabit with such other person in this state, shall be confined in the penitentiary not less than one nor more than five years."

The common law did not punish for polygamous marriage. 1 Bishop Crim. Law, § 502; Bishop on Statutory Crimes, § 579;3 R.C.L. 796; 7 C.J. 1158.

Petitioner accordingly contends that, if he is guilty under the statute, the offense was committed in the county of Logan and that the courts of that county alone have jurisdiction to try and punish him. He admits that, if the alleged bigamous marriage had occurred beyond the state, he could be prosecuted in any county in the state in which he had cohabited with the bigamous spouse, but asserts, as bigamy was not a crime at common law, and is made such only by statute, that when the bigamous marriage occurs within the state, the act of contracting or entering into the second marriage alone constitutes the offense, unless the statute under consideration expressly provides otherwise. This position is apparently sustained by unanimous authority:

"Cohabitation under the second marriage is not requisite, but the offense of bigamy is committed when the second marriage is solemnized." 7 C.J. 1162, citing numerous cases.

"The crime of bigamy is complete on the second unlawful marriage itself, and needs no sexual intercourse to fix the guilt of defendant. It is the conduct of defendant in marrying the second time which constitutes the crime, and it is the abuse of this formal and solemn contract which the law forbids, because of its outrage upon public decency. It is the unlawful contract which is punished, and the crime is complete when the ceremony is completed." 3 R.C.L. 804.

Then it is logical that, if the contracting or solemnizing of the second marriage alone constitutes and completes the offense, the crime of bigamy with which the petitioner is charged was committed in Logan county. Subsequent cohabitation under this marriage in Kanawha county would not...