Jones v. State

• Decision Date: 02 December 1944
• Citation: 184 S.W.2d 167
• Parties: JONES v. STATE.
• Court: Tennessee Supreme Court

Page 167

184 S.W.2d 167

JONES v. STATE.

Supreme Court of Tennessee.

December 2, 1944.

Error to Criminal Court, Hamilton County; L. D. Miller, Judge.

Marvin T. Jones was convicted of continuing to cohabit with his second wife while legally married to a former wife, and he brings error.

Reversed and remanded.

W. J. Troutt, of Chattanooga, for plaintiff in error.

Ernest F. Smith, Asst. Atty. Gen., for the State.

CHAMBLISS, Justice.

The indictment in this case charged violation of Code, § 11180, in two counts, (1) bigamy and (2) continuing to cohabit with a second wife while legally married to a former wife. Conviction was had under the second count with a prison sentence of ten years.

It appears that this young man was married in 1936 in Miami, Florida, to Dorris Noreen Bristow. In the fall or winter of 1940 they separated. The wife sought a divorce. In November of that year, she engaged an attorney, Gene Hunter, Coral Gables, Florida, whose standing seems to be conceded, to act for her. He prepared a bill charging desertion, which was signed and sworn to by Mrs. Jones. On December 1st, the defendant met with Mr. Hunter, Mrs. Jones and a Mr. Bowman at Mrs. Jones' home in Miami, and there and then the defendant signed a formal answer prepared by Mr. Hunter in order, as Mr. Hunter explains, to facilitate the disposition of the cause. He testifies that he gave the defendant a copy of this answer and advised him that the divorce would be decreed in January or February, that the usual time required "is three to four weeks." However, on the 2nd day following, and before he had opportunity to file the papers, Mr. Hunter testifies he was stricken with influenza, which went into pneumonia and serious lung trouble, and he was in a hospital until July, 1941. Meanwhile, he returned the cash deposited with him and advised employment of another lawyer.

Thus it is that the divorce decree was delayed and not entered until May 9th, 1941.

Meanwhile, defendant appears to have left Miami after signing his answer, etc., and on March 22nd, 1941, nearly four months later, married Margie Cox and they took up their residence in Rossville, Georgia, where they continued to reside until late in that year, when they located and resided for some time on Pine Street in Chattanooga, Tennessee, until they separated, being later divorced. This young woman is the prosecutor in this case, this indictment not being found until at the October term, 1943.

On the trial she first testified, as above recited, her testimony showing no cohabitation in this State. But being later recalled to the stand, supplementing her testimony, she was asked and answered as follows:

"Q. Now, Miss Cox, when you and the defendant Marvin Jones were married, where did you spend the week-ends? A. In a Tourist Camp in Chattanooga, Signal View.

"Q. How often did you do that? A. Spent the week-ends there, spent the weekends in a tourist camp.

"Q. As man and wife? A. As man and wife.

"Q. Over what period of time? A. From March 22nd to May 8th.

"Q. What year was that? A. 1941, after we married.

"Q. The same year you married? A. Yes sir."

This is all the testimony in any way evidencing a violation of the second provision of the statute prohibiting continued cohabitation in this State on which the prosecution rests.

A number of errors are assigned questioning the technical sufficiency of proof as to the respective marriages, etc., which we do not find to have substance. Complaint is also directed to the fixing in the indictment of "May 1st, 1943," as the date of the offense, an obvious error. But, waiving this, we consider two grounds of reversal chiefly relied on.

It is insisted, in the first place, that when defendant married Margie Cox March 22nd, 1941, he acted on a good faith belief, reasonably founded, that a divorce had been obtained in Miami, as a result of the proceedings inaugurated in the previous year, as above detailed, and that this defendant's apparent belief was not "rested on rumor," or mere unverified "report," as in the case of White v. State, 157 Tenn. 446, 9 S.W.2d 702.

But this Court has never adopted the rule, upon which the authorities are divided, that conceded good faith, an honest, but mistaken belief that a former spouse is dead or divorced, will protect one who contracts a second marriage under such belief, the parties not having lived apart and without knowledge of each other for the statutory time of five years prescribed by Code, § 11181. White v. State, supra.

The opinion in that case calls attention to the fact that the trial Judge gave the defendant the benefit of his "honest belief" defense, but, while not expressly passing on the question, the opinion cites our five year absence statute, Code, § 11181, and also notes that the decided weight of authority in this country enforces the statutory period of separation, despite honest belief. In the White case the Court found no sufficient showing of diligence or of grounds for "honest belief," holding that even on this theory the defendant was not entitled to relief.

While of opinion that the defendant in the instant case presented a much stronger showing of grounds for an honest belief that his first wife had procured a divorce, than did White, we are not prepared to say that the facts demand an application of this rule of "honest belief", without a showing of compliance with the statutory time period of five years.

However, we are of opinion that a reversal should be adjudged on another ground mentioned above. The statute, Code, § 11180, charged to have been...