Green v. State, 29020

• Decision Date: 10 November 1953
• Docket Number: No. 29020,29020
• Citation: 232 Ind. 596,115 N.E.2d 211
• Parties: GREEN v. STATE.
• Court: Indiana Supreme Court

Page 211

115 N.E.2d 211

232 Ind. 596

GREEN v. STATE.

No. 29020.

Supreme Court of Indiana.

Nov. 10, 1953.

Miller & Dale, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Thomas M. Crowdus, Deputy Attys. Gen., for appellee.

EMMERT, Judge.

This is an appeal from a judgment on a verdict sentencing appellant to the Indiana State Farm for six months and fining him in the sum of $1,000 for the offense of bigamy as charged in an affidavit. The Attorney General, with commendable appreciation of his duties as an officer of this court, and as a public officer of the state, has filed a brief in which he confesses the judgment should be reversed. Such confession of error does not relieve this court of its duty to decide the law as applied to the facts in the record. Coughlin v. State, 1950, 228 Ind. 393, 92 N.E.2d 718; Young v. United States, 1942, 315 U.S. 257, 62 S.Ct. 510, 511, 86 L.Ed. 832. ¹

The affidavit, omitting the preliminary allegations, charged, 'that William C. Green on or about the 7th day of July, A.D. 1948, at the town of Birmingham, in the County of Jefferson, and State of Alabama, did marry Faye Mathews, and her the said Faye Mathews then and there had for his wife; and that the said William C. Green, afterwards while so married as aforesaid, to-wit on the 1st day of December, 1950, at the City of Miami, County of Dade, State of Florida, did then and there feloniously and unlawfully marry and take as his wife one Janie M. Hill, and did then and there and thereafter at and in the County of Marion, State of Indiana, live and cohabit with the said Janie M. Hill, the said Faye Mathews Green being then alive and the bond of matrimony between the said William C. Green and Faye Mathews Green being still undissolved and no legal presumption of the death of the said Faye Mathews Green having arisen, all of which was well known to the said William C. Green, then and there being contrary' etc.

The statute defining bigamy states that 'Whoever, being married, marries again, the former husband or wife being alive, and the bond of matrimony still undissolved, and no legal presumption of death having arisen, is guilty of bigamy, * * *.' Section 10-4204, Burns' 1942 Replacement.

It is the appellant's position that the crime attempted to be charged by affidavit was committed in Miami, Florida, and that under the Indiana Constitution, as well as the proper construction of our criminal statutes, no crime was charged as committed in Indiana. It was the position of the State at the trial that § 10-4205, Burns' 1942 Replacement, permitted a trial in Marion County for the bigamous marriage in Florida. Section 10-4205 provides as follows:

'In case of prosecution for bigamy, it shall not be necessary to prove either of the marriages by the register or certificate thereof, or other record evidence; but either of such marriages may be shown by such evidence as is admissible to prove a marriage in other cases. The offense may be alleged to have been committed, and the trial may take place, in the county where such last marriage was solemnized or where cohabitation shall have occurred.'

'In this State there are no common law offenses. All crimes and misdemeanors must be defined, and punishment therefor fixed, by statutes of this State, and not otherwise. 1 G. & H. 415; Hackney v. State, 8 Ind. 494.' Stewart v. Jessup, 1875, 51 Ind. 413, 415. Our statute is not one which makes bigamous cohabitation a crime. A crime is committed when the bigamous ceremonial marriage is consummated. Scoggins v. State, 1877, 32 Ark. 205. Under this sort of statute cohabitation is not necessary to constitute the crime of bigamy. Hopson v. State, 1930, 115 Tex.Cr.R. 260, 30 S.W.2d 311, 70 A.L.R. 1028; ² Johnson v. Commonwealth, 1887, 86 Ky. 122, 5 S.W. 365.

'Each State, in respect to each of the others, is an independent sovereignty, possessing ample powers, and the exclusive right, to determine, within its own borders, what shall be tolerated, and what prohibited; what shall be deemed innocent, and what criminal; its powers being limited only by the Federal Constitution, and the nature and objects of government. While each State is thus sovereign within its own limits, it can not impose its laws upon those outside of the limits of its sovereign power. Our own constitution has expressly fixed the boundaries of its sovereignty. It provides, after having defined the geographical boundaries of the State, that 'The State of Indiana shall possess jurisdiction and sovereignty coextensive with the boundaries declared in the preceding section; and shall have concurrent jurisdiction, in civil and criminal cases, with the State of Kentucky on the Ohio river, and the State of Illinois on the Wabash, so far as said rivers form the common boundary between this State and the said States respectively.' Constitution, art. 14, sec. 2.' Johns v. State, 1862, 19 Ind. 421, 424. ³ 'No matter how closely an act is connected with the state, if it is done entirely outside it should not be punished, great as is the desire to do so.' Vol. 2 Beale, Conflict of Laws § 425.2, p. 1349. ⁴

Other jurisdictions with statutes making the second marriage the offense have consistently recognized and enforced the rule that the criminal laws of the state can have no extraterritorial force. People v. Mosher, 1855, 2 Parker, Cr.R., N.Y., 195; State v. Stephens, 1919, 118 Me. 237, 107 A. 296; State v. Ray, 1909, 151 N.C. 710, 66 S.E. 204; People v. Devine, 1915, 185 Mich. 50, 151 N.W. 646. The record here does not present a case where a crime has been partly committed in one jurisdiction and partly in another. See Archer v. State, 1886, 106 Ind. 426, 7 N.E. 225.

In view of the decision in Pennoyer v. Neff, 1878, 95 U.S. 714, 24 L.Ed. 565, holding it is a denial of due process under the Fourteenth Amendment for one state to attempt to extend its civil jurisdiction by process into another state, it is difficult to see how a statute attempting to make an act wholly committed...