Fuquay v. State

• Decision Date: 11 January 1927
• Docket Number: 5 Div. 625
• Citation: 114 So. 892,22 Ala.App. 243
• Parties: FUQUAY v. STATE.
• Court: Alabama Court of Appeals

114 So. 892

22 Ala.App. 243

FUQUAY v. STATE.

5 Div. 625

Court of Appeals of Alabama

January 11, 1927

Rehearing Granted March 29, 1927

Rehearing Denied April 19, 1927

Affirmed on Mandate Oct. 4, 1927

Further Rehearing Denied Nov. 8, 1927

Appeal from Circuit Court, Elmore County; George F. Smoot, Judge.

R.H alias Robert, Fuquay was convicted of bigamy, and he appeals. Affirmed on mandate.

Certiorari granted by Supreme Court in Fuquay v. State, 114 So 898.

Certiorari denied by Supreme Court, 114 So. 903.

Samford J., dissenting.

Horace C. Wilkinson, of Birmingham, for appellant.

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

BRICKEN P.J.

The opinion rendered in this case on January 11, 1927, by this court (through SAMFORD, J.) is withdrawn, and the order of affirmance is annulled. The application for rehearing is granted, and this opinion is substituted. SAMFORD, J., differs from the majority and expresses his views in a dissenting opinion following hereto.

The facts in this case are without dispute. This appellant lived with a woman by the name of Gussie Harvey for a number of years. There is some slight evidence that they claimed to be man and wife, and that they had children. Whether these children were ever recognized by appellant as his, the record is silent. Appellant and said Gussie Harvey separated. The reason and cause of the separation is not disclosed by the record. Subsequently and shortly after the separation, the appellant procured a license and was married in solemn ceremonial form to Mattie Lou Davis. There is some evidence that Gussie Harvey was living at the time the marriage with Mattie Lou Davis was solemnized. There is no evidence showing or tending to show how or why the relation between appellant and Gussie Harvey was dissolved. A divorce is not mentioned or alluded to. The appellant was indicted for bigamy. The question is, On the facts stated, is there any evidence on which a verdict of guilty could be predicated?

The law of this state recognizes a common-law marriage, but there can be no marriage without mutual consent of parties. Cohabitation and repute do not make marriage, but cohabitation as man and wife, the rearing of children, and recognition of the relation by the parties themselves, are manifestations of the parties having consented to contract that relation inter se, and, therefore, circumstances from which the trior of fact may infer that a marriage had in fact been entered into. Those things, cohabitation, repute, etc., are just that and no more. They are circumstances which, unexplained, authorize a mere inference that a marriage had in fact been entered into; that is to say, they authorize that inference, in contradistinction to the idea that they raise a presumption or compel or require such a conclusion. They do not compel or require, neither does the law compel or require, the trior of fact to come to that conclusion, even if they stand unexplained and remain unaffected by any other presumption of law or of fact.

The appellant entered in this trial with two presumptions in his favor: (1) The presumption of innocence, one of the strongest presumptions known to the law. It is a presumption of fact that the law makes, and, as a presumption of fact, it is evidence in his behalf, and remains in the case until his guilt is by the evidence established beyond a reasonable doubt. (2) The presumption of validity in favor of the last marriage which was solemnized according to the ceremony recognized by law. The presumption with which the law surrounds the undisputed formal marriage has been characterized by our Supreme Court as "the strong presumption." Bell v. Bell, 196 Ala. 465, 71 So. 465, and well it may be so referred to. The presumption is evidence. The law will not presume that a man will procure a license and go through the solemn ceremony prescribed by law for a formal marriage, in the presence of witnesses and before an officer recognized by law, knowing that those facts are to be recorded in solemn form and perpetuated as long as the power of the state is sufficient to preserve its records, unless he and the other party to the relation are legally qualified to assume the status of man and wife. The fact that parties enter into a formal marriage is some proof that there was no legal obstacle in the way of the marriage, sufficient in itself to cast the burden on any one attacking the relation, of showing by evidence, as distinguished from inference, that the marriage was void instead of valid. There is no presumption against the validity of a formal marriage. Every presumption is in favor of its validity. There is no presumption in favor of a common-law marriage. The most that the law attempts to do is to authorize, as distinguished from require, the trior of fact to infer that a marriage had in fact been entered into from a set of unexplained circumstances, such as cohabitation, repute, recognition, etc. In the case of a formal marriage, there is a presumption of fact that it was a valid marriage, and it takes evidence to overturn that presumption of fact.

In the case of a common-law marriage, there is no presumption of fact, but authority for an inference, at the option of the trior of fact, that a certain fact, to wit, a marriage, existed. There is a considerable difference between a presumption of fact and an optional inference, and we know of no authority that in anywise holds that an optional inference is ever sufficient to overturn or destroy a presumption of fact.

It has long been a maxim of law that "a fact is not proven by circumstances which are merely consistent with its existence." Duncan v. C., R.I. & P.R. Co., 82 Kan. 230, 108 P. 101.

The law is that such evidence (circumstantial) is always insufficient, where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the form of proof. 1 Starkie, Ev. 444. And in our own Supreme Court in the case of Miller Brent Lumber Co. v. Douglas, 167 Ala. 286, 52 So. 414, the court said:

"The possibility that a thing may occur is not alone, under any fair, reasonable deduction, evidence, even circumstantial, that the thing did in fact occur."

The Iowa court has very clearly expressed the same idea in the following language:

" 'It has been found to be a wise and safe rule to require circumstantial evidence to go so close to the fact to be proved that it must be the immediate and direct inference therefrom. Any other rule would result in great uncertainty. If the ultimate fact should be drawn from intervening inferential facts, the probability of its correctness would be much weakened. It would be a probability based upon a probability. The law will not tolerate such uncertainty.' *** It is a general rule, in determining whether the circumstances relied upon furnish any evidence whatever of the conclusion sought to be drawn therefrom, that the facts which the evidence tends to establish must be of such nature and so related to each other that the conclusion is the only one that can fairly or reasonably be so drawn. It is not sufficient that they are consistent with such conclusion, if they are equally consistent with some other conclusion." Klumb v. Iowa State Traveling Men's Association, 141 Iowa, 519, 120 N.W. 81.

These rules have been referred to because of their peculiar application to the facts of the instant case.

That the last marriage was solemnized in the manner and form prescribed by law is established beyond controversy. A strong presumption immediately arises in favor of its validity. The state challenges its validity, and says it was bigamous. To support its contention, it offered some slight proof of a set of circumstances consisting of cohabitation, repute, recognition, and the rearing of children, and it asks the court to say these are sufficient to authorize a jury to find that the last marriage was invalid, thus asking the court to hold that the jury had a right to infer a common-law marriage from these facts, notwithstanding the failure of the record to disclose whether it was or was not dissolved, even if it was ever consummated.

The reason why the court should decline to do this is that this set of circumstances, when standing alone, show no more than a mere possibility or conjecture that appellant and Gussie Harvey agreed to be man and wife, and, when confronted by the presumption of validity arising from a formal ceremonial marriage, they are so weak and inconclusive as that they do not amount to any evidence whatever of the conclusion sought to be drawn therefrom. They may be consistent with that conclusion, but they are equally consistent with a contrary conclusion and equally consistent with the conclusion that the common-law marriage, if it be conceded that one was consummated, had been dissolved by divorce. There is a rule of law universally recognized to the effect that:

"A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and are so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them." Asbach v. Chicago, etc., Ry. Co., 74 Iowa, 248, 37 N.W. 182.

Given the facts of two marriages, without any evidence regarding the dissolution of the first, the trior of fact cannot go beyond the presumption in favor of the last marriage. It is a case where the law casts on the assailant of the last marriage the onus of proving its invalidity. This he cannot do by simply showing a prior marriage and stopping there. If he chooses to stop there, then there is a failure of...