Holloway v. Holloway

• Decision Date: 13 August 1906
• Citation: 55 S.E. 191,126 Ga. 459
• Parties: HOLLOWAY . v. HOLLOWAY.
• Court: Georgia Supreme Court

55 S.E. 191

126 Ga. 459

HOLLOWAY .

v.HOLLOWAY.

Supreme Court of Georgia.

Aug. 13, 1906.

1. Divorce—Grounds—Conviction of Crime —Offense Involving Moral Turpitude.

The offense of voluntary manslaughter involves moral turpitude.

2. Same—Effect of Pardon.

The conviction of a married person of an offense involving moral turpitude, followed by a sentence of imprisonment in the penitentiary for a term of two years or longer, gives to the other party to the marriage a right to a divorce; and this right is not affected by an executive pardon granted after the sentence has been imposed.

[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce. 47-50, 159; vol. 37, Cent. Dig. Pardon, § 16.]

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Libel by Mittie D. Holloway for divorce against Joseph Holloway. A demurrer to the libel was overruled, and respondent brings error. Affirmed.

Mittie D. Holloway brought her libel for divorce against Joseph Holloway on May 13, 1905, and alleged that they were married on December 24, 1893; in 1899 the respondent was convicted of the offense of voluntary manslaughter, and sentenced to serve a term of 20 years in the penitentiary; they have not lived together since the conviction of the respondent; in 1904 the respondent was pardoned by the Governor. A demurrer to the libel was overruled, and the respondent excepted.

O. M. Duke and S. E. & L. F. McClelland, for plaintiff in error.

J. D. Kilpatrick, for defendant in error.

COBB, P. J. (after stating the foregoing facts). 1. The Civil Code of 1895 declares among the grounds for divorce "the conviction of either party for an offense involving moral turpitude, and under which he or she is sentenced to imprisonment in the penitentiary for the term of two years or longer." Section 2426, par. 8. The respondent was sentenced to the penitentiary for a term exceeding two years, and the right of the libelant to a divorce depends upon whether the offense of which he was convicted involved moral turpitude. Turpitude in its ordinary sense involves the idea of inherent baseness or vileness; shameful wickedness; depravity. Webster's Inter. Diet. In its legal sense it includes everything done contrary to justice, honesty, modesty, or good morals. Black's Law Diet.; Bouvier's Law Diet. The word "moral." which so often precedes the word "turpitude, " does not seem to add anything to the meaning of the term, other than that emphasis which often results from a tautological expression. All crimes embraced within the Roman's conception of the crimen falsi involve turpitude but it is not safe to declare that such crimes only involve turpitude. Murder involves vileness and depravity; for it is the result of an abandoned and malignant heart. Voluntary manslaughter involves the intentional destruction of human life. It is true that there is no deliberation, no malice, in the act constituting the offense; but the manslayer intends to kill, and carries out the intention in an unlawful manner. It may be the result of passion or temper, and the law in its mercy visits a less penalty than that inflicted for willful killing; but it necessarily involves the intention to unlawfully deprive another of life. Whenever one intentionally and wrongfully takes human life, he does an act which is base, vile, depraved, and contrary to good morals. That the offense of voluntary manslaughter involves moral turpitude cannot admit serious question. See, in this connection, 5 Words & Phrases, 4580.

2. The right of the libelant to a divorce results from the conviction and sentence. There are three essential ingredients in the ground for divorce: The commission of the offense involving moral turpitude, the conviction for the same, and a sentence for a term of two years or longer in the penitentiary. When this state of affairs is shown to...