Schell v. People

• Decision Date: 03 June 1918
• Docket Number: 9089.
• Citation: 65 Colo. 116,173 P. 1141
• Parties: SCHELL v. PEOPLE.
• Court: Colorado Supreme Court

173 P. 1141

65 Colo. 116

SCHELL v. PEOPLE.

No. 9089.

Supreme Court of Colorado

June 3, 1918

Department 3. Error to District Court, City and County of Denver William D. Wright, Judge.

George W. Schell was convicted of bigamy, and he brings error. Affirmed.

G. K Andrus and Ralph R. Andrus, both of Denver, for plaintiff in error.

Fred Farrar, former Atty. Gen., Leslie E. Hubbard Atty. Gen., and Frank C. West, Charles Roach, and Miss Clara Ruth Mozzor, Asst. Attys. Gen., for the People.

ALLEN J.

The plaintiff in error, hereinafter designated the defendant, was charged with and convicted of the crime of bigamy under section 1766, R. S. 1908 (section 1894, Mills' Ann. Sts. 1912). Eliminating clauses of the section above cited which are not material to any question presented by the record, the section reads as follows:

'Bigamy consists in the having of two wives or two husbands at one and the same time, knowing that the former husband or wife is still alive. If any person or persons within this state, being married, or who shall hereafter marry, do at any time marry any person or persons, the former husband or wife being alive, the person so offending shall on conviction thereof be punished by a fine not exceeding one thousand dollars and imprisoned in the penitentiary not exceeding two years. * * * Nothing herein contained shall extend to any person or persons whose husband or wife shall have been continually absent from such person or persons for the space of five years prior to the second marriage, and he or she not knowing husband or wife to be living within that time. * * *'

The first contention made by the plaintiff in error is that there is a total failure of proof to convict the defendant. It is undisputed that the defendant married a second time while his former wife was living and not divorced from him. It is claimed, however, that the defendant is not guilty, according to the evidence, by reason of the exception contained in the statute. In other words, the defendant claims that his former wife, at the time of his second marriage, had been continually absent from him for the space of five years, and that he did not know her to be living within that time. The contention thus made requires both an examination of the evidence and an interpretation of the statute, especially since each side takes a different view with reference to what does or may constitute absence of the former spouse within the meaning of the exception contained in the bigamy statute.

The evidence shows the following facts: The defendant married his first wife, who is referred to in the record as Mrs. Frances Schell, in Nebraska, in the year 1891. He cohabited and resided with her in Nebraska until some time in the year 1903, at which time he left his family, then consisting of his wife and five children, and came to Denver, Colo. The defendant's family was then, and had been for more than five years, living in Gothenburg, Neb. The wife and children continued to reside in Gothenburg until September 11, 1913, when the wife removed to North Platte, Neb., which is located 36 miles from Gothenburg. In 1904 Mrs. Frances Schell visited her husband in Denver, but did not establish a matrimonial domicile with him. She did not move to Denver, nor come prepared to stay, but on the occasion mentioned merely visited the defendant for the space of six days, and then went back to her home in Gothenburg, Neb. The defendant visited her at Gothenburg in 1906, which was the last time the parties saw each other until the time of the trial of this case in October, 1916. The defendant married Helen Baber in Denver on February 20, 1915, which was at a time less than two years from the date upon which Mrs. Frances Schell removed from her home in Gothenburg, Neb.

The Attorney General contends that, under the foregoing facts, the defendant's first wife was not absent from the defendant for the space of five years, within the meaning of the statute. This contention is opposed by the plaintiff in error in his reply brief. It is conceded that the defendant and his first wife lived separate and apart from each other, and each in a different state, for more than seven years prior to the time of the defendant's second marriage. The theory of the defendant is that the fact thus conceded shows the first wife's absence from him for the space of five years, and brings him within the exception in the statute so far as the same relates to the absence of a former spouse. It becomes necessary, therefore, to pass upon the Attorney General's contention, and to determine the meaning of the word 'absent' as the same is used in the bigamy statute.

In many reported cases the word 'absent,' as used in bigamy statutes, has been regarded as having such confined and technical meaning as it has in the rule regarding the presumption of death. We find no case in which the situation is otherwise. 'Absent' therefore means being away from the home or place where one has established a residence. 1 C.J. 341; 13 Cyc. 300(c).

Our statute uses the term in question as a part of the phrase 'absent from such person.' The word 'absent,' nevertheless, still has the meaning above mentioned. The bigamy statute in Alabama (section 6390, Code of 1907) employs the expression 'whose former husband or wife had remained absent from him or her for the last five years preceding such second marriage.' This expression was under consideration by the Supreme Court of Alabama in the case of Parker v. State, 77 Ala. 47, 54 Am.Rep. 43, and the absence referred to in the statute was regarded as the 'absence from which death is presumed,' and as 'absence from the former place of abode.'

In Parker v. State, supra, the court said:

'If the defendant left his wife in North Carolina, where they formerly resided, and absented himself from that state, the presumption of her death cannot arise by reason of his absence or of his having heard nothing from her. * * * A husband cannot create absence by abandoning his family, and then invoke the presumption of innocence to destroy the presumptive proof of continuing life.'

In Hyde Park v. Canton, 130 Mass. 505, 507, it is said:

'If a man leaves his home and goes into parts unknown, and remains unheard from for the space of seven years, the law authorizes, to those that remain, the presumption of fact that he is dead; but it does not authorize him to presume therefore that any one of those remaining in the place which he left has died.'

In the case at bar the evidence shows clearly that the first wife never left the last matrimonial domicile of herself and defendant, or her domicile at Gothenburg, Neb., until within two years of the time of defendant's second marriage. While she remained in Gothenburg, she was not absent from him, within the meaning of the statute. It does not matter whether the defendant intended to desert her when he came to Denver or not. In the case of Parker v. State, supra, it was not the defendant's desertion that prevented the wife from being absent within the meaning of the statute, but it was the fact that on her part there was no 'absence from the former place of abode.' The presumption of death arises in the case on the case of a person 'who has been absent from his last or usual place of residence.' 13 Cyc. 297. At the time the defendant married the second wife the last or usual place of residence of Frances Schell was at Gothenburg, and she had been absent from that place for a period of less than two years. It is true that she came to Denver, according to the evidence, in 1904, but she never established a settled residence in Denver. She came as a visitor, and remained in Denver only six days. She then went back to Gothenburg, Neb., where her home was. The defendant knew this fact, and thereafter knew that Gothenburg continued to be her place of abode. He visited her there in 1906, and corresponded with her at that place as late as 1908. Frances Shell remained in Gothenburg until September, 1913. If any presumption of her death would arise, due to her absence, it would be her absence from Gothenburg, and not her being away from the place where her husband happened to reside. Under the facts in this case, Frances Schell would naturally be expected to be found, by the defendant as well as by others, at Gothenburg, at the time of defendant's second marriage. In Robinson v. State, 6...