Graves v. State

• Decision Date: 10 March 1924
• Docket Number: 23837
• Citation: 134 Miss. 547,99 So. 364
• Court: Mississippi Supreme Court
• Parties: GRAVES v. STATE

99 So. 364

134 Miss. 547

GRAVES v. STATE

No. 23837

Supreme Court of Mississippi

March 10, 1924

Division B

APPEAL from circuit court of Perry county, HON. R. S. HALL, Judge.

Proceedings between Charley Graves and the state. From the judgment rendered, the former appeals. Reversed and remanded.

Judgment reversed and remanded.

Watkins & Young, for appellant.

No one can tell by reading the indictment, what the defendant would be called on to meet, and he could not know, until the state had rested its case (the court remarked in qualifying the jury, that he was charged with bigamy); it is not charged in the indictment, and if we assume that it was an effort to charge bigamy, we cannot tell with whom the bigamous marriage was contracted, or where or when. The indictment charges affirmatively that the "former marriage of appellant and Rena Hickman or McKenzie, was not contracted within the age of consent (regardless of what he intended to say); and neither the indictment nor proof attempts to show that either of the parties mentioned in the indictment ever ratified said marriage, or that they, or either of them, are now of lawful age and capable of ratifying said marriage, if any. Neither is it charged that defendant's aforementioned lawful wife, if any he had, was still living, and for some unknown reason one Rena Hickman, or McKenzie, is charged in the indictment with exactly the same thing, though she is not named as defendant in the indictment."

It appears from the testimony that the state was attempting to establish a common-law marriage of appellant to some person somewhere, sometime, but did not undertake to show any of the particulars by which a common-law marriage was contracted which is consummated by mutual agreement and terminated by the same, that is by disagreement and a determination to discontinue said marriage. It cannot be terminated by divorce, which always presupposes a valid marriage. See 19 Cyclopedia of Procedure, 370, par. II, subsec. 2. "The burden is always on the state to establish actual marriage in prosecutions for bigamy." See 8 Encyclopedia of Evidence, 441, Citation No. 2, especially Damons' Case, cited.

The venue of the charge is not proven, 3 S. and M. 553; 13 S. and M. 246; 23 Miss. 509; 51 Miss. 353; 55 Miss. 432; Morris State Cases 245, 455, 574; 58 Miss. 858; 58 So. 1; 72 So. 965, and 647; 54 So. 72.

If the state relied on a common-law marriage, it was incumbent on it to show that both parties intended marriage, not merely unlawful cohabitation, nor adultery, and were capable of making such a contract. 58 So. 444. Also a common-law marriage was never recognized in Louisiana, while it is not shown that a marriage of any kind was ever consummated by appellant in Louisiana, or anywhere else. The state, of course, always assumes the burden of proving that the first marriage was valid. Its validity is the thing that makes the second marriage void and bigamous.

Beginning as far back as the Gibson case, 38 Miss. 313, 82 Miss. 555, down to the Bennett case, 55 So. 482, it is announced by the supreme court of Mississippi, "That the state proves both marriages," and if it appears that the first marriage was void, the defendant cannot be convicted. There is no attempt to prove a marriage in Louisiana.

Francis S. Harmon, Assistant Attorney-General, for the state.

The questions before this court really boil down to three, namely, the sufficiency of the indictment, establishment of the venue in Perry county, and proof of the first marriage. It is to these questions that we turn our attention.

I. Sufficiency of the indictment. The indictment charges that "Charlie Graves, on the 17th day of September, 1923, in Perry county, aforesaid, did unlawfully, knowingly and feloniously marry Rena McKenzie, alias Rena Hickman, a married woman, he being a married man," etc.

Counsel alleges in his brief that the indictment is defective in that it does not allege that the defendant had a living, lawful wife. It is submitted that the indictment is sufficient on this point. It specifically says that the defendant "was a married man" at the time of the so-called second marriage. Now it goes without saying that one cannot be a married man unless one has a legal wife living at the time, and the allegation is therefore sufficient. The specific question was raised and decided in accordance with the contention here made in State of Iowa v. Hughes, 58 Iowa 165, 11 N.W. 706.

Counsel further objects to the indictment because it negatives the exceptions contained in section 1052 of the Code of 1906, section 780 of Hemingway's Code. It is entirely unnecessary in an indictment for bigamy to negative a statutory exception at all, and all this portion of the indictment was mere surplusage. This question was conclusively settled in the leading case of Bennett v. State, 100 Miss. 684, (1911).

II. Venue. Counsel vigorously contends that the venue is not adequately laid in Perry county. But from Squire Boone's testimony the beat and the town in which the second ceremony was performed is established, and this town of Richton is stated to be in Perry county, thus sufficiently establishing the venue and conforming to the indictment.

III. Proof of existing, valid marriage. The most important question in the case is whether the defendant was legally married at the time of the second ceremony. Counsel for the appellant seems to labor under the misapprehension that it is necessary to actually introduce the marriage certificate, or to prove by eye witnesses that such a marriage had taken place. Such a restrictive attitude would make it wellnigh impossible to convict of the crime of bigamy, and the wellnigh unanimous current of authority is to the effect that an existing, valid marriage may be established in other ways. 7 C. J. 1175, section 53; Dumas v. State, 14 Texas Appeals, 464, at 472.

Here we find from the testimony qualified admissions of the defendant that the woman with whom he was living in the Bogalusa logging camp was his wife; unqualified statements by next door neighbors that Graves lived with this woman and their children as husband and wife, and that such was their general reputation in the community. It is submitted, therefore, that the evidence in the case is amply sufficient to satisfy all three tests laid down by Corpus Juris, any one of which is sufficient in some states to prove the fact of marriage.

There is a presumption that a man lives and cohabits with his lawful wife. 7 C. J. 1172; United States v. Smith, 14 P. 293 (Utah) . A great number of cases lay down the rule that the first marriage may be established by circumstantial evidence. Murphy v. The State, 122 Ga. 149; Apkins v. The Commonwealth, 148 Ky. 662; Commonwealth v. Hayden, 163 Mass. 453; Bryan v. The State, 63 Texas Criminal, 200.

We submit, therefore, that the fact of an existing legal marriage is sufficiently proved in this case. The three constituent elements of the crime being thus adequately proved, the conviction must stand, and the case be affirmed.

OPINION

ETHRIDGE, J.

The appellant, Graves, was indicted for bigamy; the indictment charging that Charley Graves on the 17th day of September 1923, in Perry county aforesaid, did unlawfully, knowingly, and feloniously marry Rena McKenzie, alias Rena Hickman, a married woman, he being a married man; the husband of Rena McKenzie, alias Rena Hickman, and the wife of Charley Graves not being absent from them for seven consecutive years without being known to such persons within the time to be living, and not absenting herself from Charley Graves or Rena McKenzie and remaining without the United States continually for seven years, and the former husband of Rena McKenzie and former wife of Charley Graves not having been lawfully divorced, and the said former wife of Charley Graves and former husband of Rena Hickman not having had the former marriage contracts annulled by a court of competent jurisdiction for the nullity of marriage contracts, and said former marriage of ...