State v. Bittick

• Decision Date: 10 February 1891
• Citation: 15 S.W. 325,103 Mo. 183
• Parties: STATE v. BITTICK.
• Court: Missouri Supreme Court

15 S.W. 325

103 Mo. 183

STATE v. BITTICK.

Supreme Court of Missouri, Division No. 2.

February 10, 1891.

WHAT CONSTITUTES MARRIAGE.

Where defendant and a girl under 18 years of age, whose mother refuses to consent to her marriage, and who for that reason cannot procure a license to marry, in the presence of witnesses mutually agree to marry, and publicly make themselves known as man and wife, and sign a written instrument, with witnesses, in which they enter into a solemn vow to live together as man and wife, and that agreement is followed by cohabitation, holding themselves out to the world as man and wife, it is a valid marriage,

and defendant cannot be convicted of taking away a girl under 18 years of age for the purpose of concubinage.

Appeal from circuit court, Callaway county; JOHN A. HOCKADAY, Judge.

Boulware & Finlay, for appellant. The Attorney General, for the State.

THOMAS, J.

The defendant was indicted and convicted in the Callaway circuit court for taking away Bertha A. L. Bice, a female under 18 years of age, from Sarah Rhine, her mother, who had the legal charge of her, for the purpose of concubinage, and was sentenced to imprisonment in the penitentiary for a term of two years. From this sentence he has taken his appeal to this court. The record shows that the defendant was a widower, with six children, and according to the finding of the jury Bertha A. L. Bice was under 18 years of age. She lived with her mother, who was a widow. The mother testified that the girl was about 16 years old. The girl worked at defendant's, and it seems fell in love with him, and she and he desired to marry, but, the mother refusing to give her consent, they were unable to obtain a marriage license. Determined, however, not to be thwarted in their designs and wishes, they got together, and F. L. Minor testified as to what then occurred as follows: "Know Mrs. Rhine and Bertie Bittick, the wife of defendant. Bertie and defendant were married at my house about the 16th of last April. Were married publicly, in the presence of over 20 persons. They married themselves. There was no minister or officer present. They stood up in the parlor floor, and mutually agreed and promised to marry each other. They publicly made known themselves as man and wife. Lived, cohabited, and held themselves out to the world as man and wife. They were known and recognized by the public as man and wife. They, at the time of said marriage, signed and executed a written marriage contract, which was attested by myself and a number of others." Witness identified the following contract as made by the parties, and witnessed by him and others: Marriage Contract. "We, Hiram J. Bittick and Bertie A. L. Bice, enter into a solemn vow to live together so long as we may both live, to live together as man and wife, in the presence of our God and the undersigned witnesses, at the residence of F. L. Minor, in Cote Sans Dessein township, county of Callaway, state of Missouri, on this 16th day of April, 1890. H. J. BITTICK. BERTHA A. L. BICE. Witnesses: F. L. MINOR. W. A. JOHNSON. FANNIE A. JOHNSON. JANE T. MINOR. AGNES BITTICK. OLIVIA RIEFSTIECK. ROSE RIEFSTIECK. WILLIAM RIEFSTIECK. HERBERT JOHNSON. The above and foregoing instrument of writing was filed for record, April 29, 1890, at 10:20 A. M., and duly recorded. GEORGE W. PENN, Recorder. By P. B. BAILEY, Deputy Recorder."

This is a sufficient statement of the facts of this case to present the points involved. Upon the facts thus given the court gave 10 instructions at the instance of the state, and 17 at the instance of defendant, and yet defendant complains that the court did not fully instruct the jury. The view we have taken of the case renders it unnecessary to refer to the instructions specifically. Suffice to say that the court told the jury that the marriage ceremony and contract as given here did not constitute a marriage, and therefore that defendant could not escape the penalty of the statute under which he was indicted, on the ground that he had made Bertha his wife. The defendant contends that this was error, and that this ceremony and contract did constitute a valid marriage, and therefore that defendant and Bertha were, after April 16, 1890, man and wife, and had a right to cohabit together as such, and this is the point to be decided. Owing to the importance of the question, involving, as it does, the best interests of society and the preservation of the home and family, the basis of all good society, we gave it a very careful consideration. This and kindred questions have been before the American and English courts so often, and the subject has been so frequently and thoroughly discussed by the courts and text-writers, that we deem it unnecessary, and even a profitless task, to review the authorities again in this case. Ever since 1805 we have had statutes in this state regulating the marriage ceremony, and providing who might solemnize it. These statutes remained, in substance, the same till 1881, when for the first time an act requiring a license to marry was passed. Prior to this change the question as to whether the statutes of this state on the subject superseded the common law, and rendered a marriage not in conformity with the statutory requirements void, was before this court in 1857, in State v. McDonald, 25 Mo. 176; in 1876, in Cargile v. Wood, 63 Mo. 501; in 1877, in Dyer v. Brannock, 66 Mo. 391; and again in 1883, in State v....