State v. Cone
| Decision Date | 28 November 1893 |
| Citation | 57 N.W. 50,86 Wis. 498 |
| Parties | STATE v. CONE. |
| Court | Wisconsin Supreme Court |
Question certified from circuit court, Racine county; Frank M. Fish, Judge.
Frank L. Cone was convicted of bigamy, and on motion in arrest of judgment certain facts were certified to the supreme court, and the question submitted, “Can the defendant be legally convicted of bigamy under the above facts?” Question answered in the affirmative.
The other facts fully appear in the following statement by WINSLOW, J.:
Prosecution for bigamy. The defendant, without the consent of his parents, married one Edith S., October 31, 1885, being then fifteen years and two months old. They cohabited together until April, 1886, when they voluntarily separated and have not since lived together. On the 19th day of September, 1891, the defendant married one Sarah C., the said Edith being still alive, and no decree of divorce or annulment of the first marriage having been obtained. Upon these facts the defendant was found guilty of bigamy, and upon motion in arrest of judgment the circuit judge certified the above facts to this court, and submits the question, “Can the defendant be legally convicted of bigamy under the above facts?”J. L. O'Connor, Atty. Gen., and J. M. Clancy, Asst. Atty. Gen., for plaintiff.
E. O. Hand, for defendant.
WINSLOW, J., (after stating the facts).
The question is, was the first marriage void or voidable only? If void, then there was no bigamy; if voidable only by the decree of a court of competent jurisdiction, then there was a marriage subsisting until such decree was rendered, albeit an imperfect one. Speaking of such a marriage, it was said by this court in the case of Eliot v. Eliot, 77 Wis. 634, 46 N. W. 806: 1 This language was used advisedly, and is supported by the great weight of authority. We see no reason for departing from it now. Beggs v. State, 55 Ala. 108, and authorities cited. The case of Shaeffer v. State, 20 Ohio, 1, is an authority to the contrary, but we do not deem it well supported either in reason or authority. It follows that the question submitted must be answered in the affirmative. Question answered in the affirmative.
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