Fuquay v. State

• Decision Date: 18 June 1927
• Docket Number: 5 Div. 983
• Citation: 114 So. 898,217 Ala. 4
• Parties: FUQUAY v. STATE.
• Court: Alabama Supreme Court

114 So. 898

217 Ala. 4

FUQUAY v. STATE.

5 Div. 983

Supreme Court of Alabama

June 18, 1927

Certiorari to Court of Appeals.

R.H alias Robert, Fuquay was convicted of bigamy, and appealed to the Court of Appeals, and the judgment of conviction being there reversed, the State, by its Attorney General, brings this petition for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Fuquay v. State, 114 So. 892. Writ awarded; reversed and remanded.

See also, 114 So. 903.

Charlie C. McCall, Atty. Gen., and W.M. Rayburn, Asst. Atty. Gen for the State.

Horace C. Wilkinson, of Birmingham, opposed.

THOMAS J.

We have carefully examined the respective opinions rendered in the Court of Appeals, and are in accord with the views expressed and result announced by Judge Samford.

The common-law marriage has long been sanctioned in this state ( Wall v. Williams, 11 Ala. 826; Beggs v State, 55 Ala. 108; White v. Hill, 176 Ala. 480, 58 So. 444), and that, where the fact of such a marriage is shown by the required measure of proof, the offense of bigamy may be predicated thereon.

In such a charge the burden is upon the state to establish the corpus delicti. That is, to prove beyond a reasonable doubt (1) that there was a subsisting valid prior marriage entered into by the defendant; and (2) that a second marriage had been contracted by that defendant while the lawful spouse of the former marriage was living. Parker v. State, 77 Ala. 47, 54 Am.Rep. 43; Buchanan v. State, 55 Ala. 154. This measure of proof is required to overcome the presumption of innocence that attends a defendant on trial for crime. Parker v. State, supra; 40 C.J. p. 1170, § 40. Thus is established a prima facie case (Bennett v. State, 100 Miss. 684, 56 So. 777), and the state is not required to prove the negative--that the prior marriage had not been dissolved--facts peculiarly within the "cognizance of a defendant prosecuted for bigamy" (Bennett v. State, 100 Miss. 684, 56 So. 777; Goad v. State, 51 Tex.Cr.R. 393, 102 S.W. 121; 7 C.J.p. 1170, § 40).

This court has held in bigamy cases that: "Marriage may be contracted in this state, without ceremony or solemnization, by the consent of the parties, followed by cohabitation. Campbell's Adm'r v. Gullatt, 43 Ala. 57; Beggs v. State, 55 Ala. 108; Farley v. Farley, 94 Ala. 501, 10 So. 646 . The defendant offered evidence tending to show that, after the decree of divorce, he and his former wife, in the presence of witnesses, agreed to 'let the past be the past, and from that time on they would again live together as man and wife,' and that from that time to the time of the trial they had lived together as husband and wife. These facts, if the evidence was believed, constituted a valid marriage at common law. Whether the facts offered to be proved really existed, and whether, if there was such an agreement, consummated as stated, it was made in good faith, or merely as a cloak to hide illicit relations, were questions for the jury." (Italics supplied.) Mickle v. State, 21 So. 66.

That is to say, in a criminal offense, of which a second marriage is an ingredient, and where the legal presumption of innocence of the accused contracting the second marriage is indulged, the first marriage may be proved by evidence of former cohabitation with a third person and defendant's declarations or confessions. Langtry v. State, 30 Ala. 537; Williams v. State, 54 Ala. 133, 25 Am.Rep. 665; Buchanan v. State, 55 Ala. 154; Moore v. Heineke, 119 Ala. 627, 24 So. 374. If this evidence is "full and satisfactory," the prosecution is not required to produce either the record of the former marriage or the testimony of some person who witnessed the ceremony, for, by the common law, consent followed by cohabitation constitute a valid marriage (Williams v. State, 54 Ala. 131, 135, 137, 25 Am.Rep. 665; Langtry v. State, 30 Ala. 536); or, on the other hand, the jury may infer from such facts an actual ceremonial marriage ( Bynon v. State, 117 Ala. 80, 23 So. 640, 67 Am.St.Rep. 163; Parker v. State, 77 Ala. 47, 54 Am.Rep. 43; Reid v. State, 168 Ala. 118, 53 So. 254).

In civil cases the one attacking the validity of a second marriage on the ground of a subsisting former marriage has the burden of proving that the original or prior marriage has not been dissolved by death or by law. That application of the rule will not be made in a prosecution for bigamy or adultery. Bennett v. State, 100 Miss. 684, 56 So. 777; Fletcher v. State, 169 Ind. 77, 81 N.E. 1083, 124 Am.St.Rep. 219; Pittinger v. Pittinger, 28 Colo. 308, 64 P. 195, 89 Am.St.Rep. 200. The reason for the distinction is that "public policy, social convenience and safety often justify a resort to certain presumptions"; as, for example, that "of the validity of a marriage duly solemnized indulged in collateral proceedings of a civil nature involving private rights." Teter v. Teter, 101 Ind. 129, 51 Am.Rep. 742; Boulden v. McIntire, 119 Ind. 574, 21 N.E. 445, 12 Am.St.Rep. 453; Wenning v. Teeple, 144 Ind. 189, 41 N.E. 600; 32 A.L.R. 1118, note; 34 A.L.R. 465, note, 483, note. And in such collateral inquiries involving private rights, as the disaffirmance of marriage, compensation cases, that of legitimacy as affecting necessary parties to a suit, or parties in interest to contests of wills, were our decisions of Weatherford v. Weatherford, 20 Ala. 548, 556, 557, 56 Am.Dec. 206; Thompson v. Thompson, 91 Ala. 591, 8 So. 419, 11 L.R.A. 443; McLaughlin v. McLaughlin, 201 Ala. 482, 78 So. 388; Young v. Woodward Iron Co., 211 Ala. 508, 101 So. 51; Moore v. Heineke, 119 Ala. 627, 24 So. 374; Williams v. Wilson, 210 Ala. 289, 97 So. 911. To those cases we will later advert. That is to say, the rule applied in civil cases that, in attacking the validity of a marriage ceremony on the ground of a former marriage, the burden of proof is upon the attacking party to show that it did not exist or continue, or that there was no divorce from the first wife, does not apply in prosecutions for bigamy. 7 C.J. p. 1170, § 40; 3 R.C.L. § 24, p. 807; Industrial Commission of Ohio v. Dell, 104 Ohio St. 389, 135 N.E. 669, 34 A.L.R. 422, et seq.; L.R.A.1916F, 819; 34 A.L.R. 494; Parker v. State, 77 Ala. 47, 54 Am.Rep. 43; Buchanan v. State, 55 Ala. 154; Ake v. State, 6 Tex.App. 419, 32 Am.Rep. 586.

In the criminal charge of bigamy (Fletcher v. State, 169 Ind. 77, 81 N.E. 1083, 124 Am.St.Rep. 220) it is declared:

"There is no occasion for resorting to presumptions, and we find no authority to sustain the doctrine for which appellant contends. In such case the accused has opportunities, above all others, of knowing whether a divorce has been granted, and if so, where proof of the fact may be obtained. Public policy and convenience do not require the state, in this class of cases, to search all records extant for proof of a negative fact peculiarly within the knowledge of the defendant; but, when the state shows that the accused has been married to a woman who was still living at the time of his second marriage to another, it is incumbent upon him to show a divorce from such former wife. State v. Barrow (1879) 31 La.Ann. 691; Commonwealth v. Boyer (1863) 7 Allen [Mass.] 306; 4 Elliott, on Evidence, § 2873; 3 Greenleaf, Evidence (16th Ed.) § 208; Fleming v. People (1863) 27 N.Y. 329; Hull v. State (1880) 7 Tex.Ct.App. [ [Tex.App.] 593; May v. State (1878) 4 Tex.Ct.App. [ Tex.App.] 424."

In Bennett v. State, 100 Miss. 684, 697, 698, 699, 703, 704, 56 So. 777, 779, the charge was bigamy, and the above quotation from Fletcher v. State, supra, is approved, and there further declaration is made as follows:

"The onus of proof is on him to show,

as a matter of defense, that he had been divorced by competent authority at the time of his second marriage, or that his former marriage had been declared void by competent authority. Such, in substance, was the holding of the court in the case of State v. Barrow, 31 La.Ann. 691. See 1 Bishop on Marriage, Divorce and Separation, § 1149. Mr. Underhill, in his most excellent work on Criminal Evidence (2d Ed.) § 405, announces the same principle: 'A marriage, shown to have been solemnized, will be presumed to be valid until its invalidity is shown. The rule that, when a marriage has been consummated, it will be presumed that the former marriage of one of the parties has been legally dissolved, does not apply in a prosecution for bigamy; so, where the state has shown that the accused has been married to a woman who was still living at the time of his second marriage to another, the burden was on him to show that his former marriage had been legally dissolved.' "

The Chief Justice Mayes states the rule respectively applicable as follows:

"When the fact of whether or not a man or woman is a bigamist is incidentally involved in the pursuit of property rights by different persons claiming matrimonial relations with him or her, the guilty person being dead and having nothing at stake, the law is that the person who seeks to profit by proof of the unlawful relation must establish it by the clearest proof. Such person, in this character of litigation, cannot establish the bigamous marriage by mere proof of a valid first marriage with the first husband or wife living at the date of the second marriage. Such facts must be followed by satisfactory and convincing proof that there had been no divorce from the first marriage before the second was contracted, or the law steps in and presumes the validity of the second marriage. But when the man or woman is before the court on a direct charge of bigamy, when the proof of bigamy is not merely incidental to the accomplishment of some other desired end, the same proof which the law allows to stand as a shield to

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