State v. Cooper
Decision Date | 10 February 1891 |
Citation | 103 Mo. 266,15 S.W. 327 |
Parties | STATE v. COOPER. |
Court | Missouri Supreme Court |
1. Under an indictment for bigamy, the fact of a previous marriage must be proved; and while cohabitation and the holding of each other out to the world as husband and wife, and the admissions of the parties, are all evidence of a marriage, they do not constitute marriage; and it is error to instruct the jury that the law presumes a marriage from such facts, and that when established they put the burden of rebutting such presumption upon the defendant. Distinguishing Cargile v. Wood, 63 Mo. 501, and Dyer v. Brannock, 66 Mo. 391.
2. In a prosecution for bigamy, where the issue was as to whether defendant had previously contracted a common-law marriage, it was error for the court to instruct the jury that if defendant and the woman were "in fact married" to each other they should find defendant guilty, without also defining what constitutes such marriage.
Appeal from criminal court, Buchanan county; SILAS WOODSON, Judge.
M. G. Moran and James Moran, for appellant. The Attorney General, for respondent.
The defendant was tried for and convicted of bigamy in the criminal court of Buchanan county, and was sentenced to imprisonment in the penitentiary for four years and six months, and the case is here on his appeal. The court, at the instance of the state and on its own motion, instructed the jury as follows: "The court, on motion of the state, instructs the jury that if they believe from the evidence in this case that the defendant, on or about the 20th day of November, 1889, at Buchanan county, willfully married one Eva Alexander, as charged in the indictment, and he had another living wife at the time, to-wit, Lavina C. Cooper, then the jury will find the defendant guilty of bigamy as charged in the indictment, and assess his punishment therefor at imprisonment in the penitentiary for a time not less than two nor more than five years, or in the county jail not less than six months, or by fine not less than five hundred dollars, or both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months." "(3) The court instructs the jury that if they believe from the evidence that the defendant and Lavina C. Cooper, alias Lavina C. Atkins, for any long period of time, lived together publicly as husband and wife, that he passed himself for her husband and she for his wife, introduced himself and herself to his family and his friends and the public as her husband and she as his wife, cohabited with her as his wife and he as her husband, and held himself and herself out to the public generally as sustaining the relations of husband and wife by his general acts and conduct, then the jury are instructed that the law presumes that they were married within the meaning of the law, and that they are husband and wife, and this presumption is conclusive upon the defendant, unless he shall satisfy the jury by evidence in the case, to their reasonable satisfaction, that he was not married to Lavina C. Cooper, his reputed first wife; and that unless he shall so satisfy the jury they will convict him as charged." Defendant saved his exceptions to the giving of these instructions, and in substance asked the court to instruct the jury (1) That his marriage with Eva M. Alexander in November, 1889, overcame the presumption of his marriage with L. C. Atkins; and (2) that no inference of marriage with L. C. Atkins, arising from cohabitation, etc., can be drawn, but an actual marriage must be shown to convict him of bigamy. The court refused to so instruct, and defendant duly excepted, and urges here that the court erred in the instructions given, as well as refusing those he asked, and also in not giving an instruction defining what marriage is.
1. We are clearly of the...
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