Manahan v. State
| Decision Date | 30 April 1949 |
| Citation | 219 S.W.2d 900,188 Tenn. 394 |
| Parties | MANAHAN v. STATE. |
| Court | Tennessee Supreme Court |
Error to Criminal Court, Campbell County; Jesse L. Rogers, Judge.
W. J Manahan was convicted of unlawful cohabitation, and he brings error.
Affirmed.
R. L Pope and J. David Pope, both of Knoxville, for plaintiff in error.
Nat Tipton, Asst. Atty. Gen., for the State.
The defendant was convicted of unlawful cohabitation and his punishment fixed at not less than two nor more than four years in the State prison.
On October 21, 1934, the defendant was married to Miss Leo McGaugh in Iuka, Mississippi. After living together for some time the parties separated in 1939, but continued to correspond with each other. The first wife of the defendant was living in Houston, Texas. The defendant came to Oak Ridge to work as a carpenter during the pendency of that project and began keeping company with Miss Cecile Sutton. While at Oak Ridge, the defendant claimed to have received two letters from his then wife, Leo McGaugh. The first of these letters was to the effect that after thinking over the situation she thought it was better for to get a divorce, and was so advising him. This letter was dated May 12, 1944. On June 6 of the same year, th defendant testified that he received another letter from his first wife stating that he was a free man, and she was glad they could still be friends.
About a week after the defendant received this second letter, he married Miss Cecile Sutton. He admitted in his testimony that he was aware of the fact that it took 30 days' publication to obtain a divorce. As a matter of fact, while the record does not show when the suit for divorce was filed by the first wife of the defendant, the decree was not granted until April 27, 1946, or almost two years after the defendant had married Miss Sutton. There is some testimony in the record that when the rumor went around that the defendant had a former wife, he denied ever having been married to Leo McGaugh.
The defence of the defendant is that he honestly and upon reasonable grounds, believed that he had been divorced from his first wife when he married Miss Sutton. This defense is based on section 11181 of Williams' Code which is as follows: 'No person shall be deemed guilty under the proceding section whose husband or wife shall continually remain beyond the limits of the United States, or absent him or herself from the other, without the knowledge of the party remarrying that the other is living, for the space of five years together, or who has good reason to believe such former husband or wife to be dead.'
The above-quoted statute makes no exception based on an honest belief that the wife or husband had obtained a divorce. The statute denouncing the offense of unlawful cohabitation does not require that the second marriage shall be contracted knowingly or willfully, and in the absence of such requirements, criminal intent need not exist. Pappas v State, 135 Tenn. 499, 188 S.W. 52; Sloan v. State, 168 Tenn. 573, 79 S.W.2d 1021, 97 A.L.R. 1505.
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