Smith v. People
| Decision Date | 04 February 1918 |
| Docket Number | 9082. |
| Citation | 64 Colo. 290,170 P. 959 |
| Parties | SMITH v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to Juvenile Court, City and County of Denver; Ben B. Lindsey Judge.
William H. Smith was convicted of desertion and nonsupport, and he brings error. Affirmed.
Rice W. Means and Paul De Laney, both of Denver for plaintiff in error.
Leslie E. Hubbard, Atty. Gen., and Charles Roach, Miss Clara Ruth Mozzer, and Bertram B. Beshoar, Asst. Attys. Gen., for the People.
The plaintiff in error, hereinafter called the defendant, was convicted under the nonsupport act (chapter 179, Session Laws 1911), for his desertion of, and willful failure to provide reasonable support for, his wife. The main contention of the defendant is that the evidence fails to establish that there ever had been a marriage between the defendant and the prosecuting witness; the latter being named in the information as the defendant's wife.
The testimony discloses the following facts, which are not disputed: The prosecuting witness was orphaned at the age of 9 years. She then made her home with her sister at Colorado Springs. When she was between 15 and 16 years of age she met the defendant. About a year after the defendant and the prosecuting witness became acquainted with each other they began to cohabit and live together as husband and wife, and continued to do so for a period of about 6 1/2 years, residing in the city and county of Denver during the last 2 1/2 years of this period. For a short time these parties lived with the defendant's mother, and during the rest of the time they kept themselves separate and apart from others. At different times they were visited by their acquaintances and by the defendant's relatives. During all of the time that they lived together it was the defendant's custom to introduce the prosecuting witness to those whom they met, and to their neighbors, as his wife. At the beginning of their cohabitation the defendant was a married man, having another wife then living. This fact was by him kept secret from the prosecuting witness. She did not become aware of the defendant's prior marriage until some time between one and two years after she began to live with him, when she received a letter from his former wife.
On the 27th of March, 1914, which was more than two years before the defendant and the complaining witness ceased to live and cohabit together, the defendant's former wife was granted a divorce from him. It appears to be taken for granted, in the argument on both sides, that after the defendant was divorced from his former wife there was no longer any obstacle to a valid marriage between the defendant and the prosecuting witness. There having been no ceremonial marriage, the sole question in this connection is whether or not a common-law marriage was entered into by the parties after the defendant was divorced from his former wife.
After the granting of the divorce, as well as before, the defendant and the complaining witness were generally reputed to be, and regarded as, husband and wife. It does not appear from the testimony that at any time they were considered otherwise than as husband and wife by any person who knew that they were living together. Before the granting of the divorce above mentioned the parties in question lived in light housekeeping rooms, hotels, and rooming houses. After such divorce, however, they made their home in a cottage all to themselves for a time. Here they entertained friends, who recognized and treated the prosecuting witness as the defendant's wife. After the divorce from his former wife, the defendant continued his custom of introducing the complaining witness to people whom they met as his wife. The defendant spoke of her as his wife and the defendant's sister referred to the prosecuting witness as her 'brother's wife.'
The parties in question lived and cohabited together continuously for over 2 years after defendant's former wife obtained her divorce, and until a short time before this proceeding was instituted. It appears that the cohabitation terminated by reason of the defendant's leaving the prosecuting witness, on which occasion he stated, in effect, that he would not 'be back' and that he 'got another woman.' The record also discloses that during the period of their cohabitation the parties regarded and mutually acknowledged each other as husband and wife. Letters to the prosecuting witness from the defendant himself, and letters from other persons, were referred to in the testimony as having been so addressed as to show that the respective writers regarded this witness as a married woman and the wife of the defendant.
The facts and circumstances hereinbefore narrated constituted evidence of marriage. The proof of marriage by cohabitation and repute has been recognized in many cases in the United States. White v. White, 82 Cal. 427, 23 P. 276, 7 L.R.A. 799; 18 R.C.L. 429. The defendant insists, however, that the evidence is insufficient to show that the parties ever agreed to be husband and wife. Mututal consent is one of the essentials of a valid...
To continue reading
Request your trial
-
State v. Carpenter, 7300
...133 A.L.R. 738; Willis v. Willis, 48 Wyo. 403, 49 P.2d 670, 677; Shepherd & Pierson Co. v. Baker, 81 Mont. 185, 262 P. 887; Smith v. People, 64 Colo. 290, 170 P. 959; Porter v. U.S. 7 Ind.T. 616, 104 S.W. Givens, Justice. Budge and Miller, JJ., and Sutphen, D. J., concur. Holden, Justice, d......
-
People v. Lucero
...the difficulty of proof is readily apparent. We have recognized that "the agreement need not have been in words," Smith v. People, 64 Colo. 290, 293, 170 P. 959, 960 (1918); see also Rocky Mountain Fuel Co. v. Reed, 110 Colo. 88, 130 P.2d 1049 (1942), and the issue then becomes what sort of......
-
Curry v. Humane Soc'y of Colo. (In re Estate of Little)
...law marriage as valid and binding). Mutual consent need not be reduced to writing or expressed through words, Smith v. People , 64 Colo. 290, 293, 170 P. 959, 960 (1918), but the parties’ conduct must evidence their mutual understanding that they are husband and wife, see Lucero , 747 P.2d ......
-
Graham v. Graham, 17257
...that there be evidence both of cohabitation and reputation before such a marriage can be presumed. * * *' See also: Smith v. People, 64 Colo. 290, 170 P. 959; Rocky Mountain Fuel Co. v. Reed, 110 Colo. 88, 130 P.2d 1049; Clark v. Clark, 123 Colo. 285, 229 P.2d The determination of the weigh......