State v. Hand

• Decision Date: 10 June 1910
• Docket Number: 16,071
• Citation: 126 N.W. 1002,87 Neb. 189
• Parties: STATE OF NEBRASKA v. JAMES HAND ET AL
• Court: Nebraska Supreme Court

126 N.W. 1002

87 Neb. 189

STATE OF NEBRASKA v. JAMES HAND ET AL

No. 16,071

Supreme Court of Nebraska

June 10, 1910

ERROR to the district court for Otoe county: HARVEY D. TRAVIS JUDGE. Exceptions overruled.

Exceptions OVERRULED.

D. W Livingston, for plaintiff in error.

John C Watson, contra.

OPINION

FAWCETT, J.

The defendants were informed against by the county attorney of Otoe county for the crime of fornication. There was a trial to the court without a jury upon a stipulation of facts. The court found the defendants not guilty, and ordered that they be discharged. Thereupon the county attorney, by leave of court, under the provisions of section 483 of the criminal code, filed his petition in error in this court, alleging that the finding and judgment of the court below "in acquitting and discharging the said defendants was contrary to law." From the stipulation of facts it appears that the defendants are within the class prohibited by the laws of this state from entering into the marriage relation; that on November 23, 1892, while both defendants were residents of this state, they went into the state of Iowa to celebrate their marriage for the express purpose of evading the laws of the state of Nebraska. This is the question for our consideration. After their marriage they returned to Omaha, and there lived together as husband and wife for a period of three years. They then removed successively to the states of Utah, Idaho, and Oregon, in all of which states they lived and cohabited together and were known among their friends and acquaintances as husband and wife. Thereafter they returned to Nebraska, where they also lived in that relation until the time of their arrest. It is conceded that by the laws of Iowa the marriage of defendants when consummated there was lawful in that state. Did the court err in finding them not guilty of the charge preferred against them and in ordering their discharge? We think not. In Medway v. Needham, 16 Mass. 157, the man, a mulatto, and the woman, a white woman, were inhabitants and residents of Massachusetts. Desiring to be married, and the law of Massachusetts prohibiting such marriage, they went into the neighboring province of Rhode Island and were there married according to the laws of that province, such a marriage not being then prohibited by the laws thereof. In the syllabus the court say: "A marriage, which is good by the laws of the country where it is entered into, is valid in any other country; and although it should appear that the parties went into another state to contract such marriage with a view to evade the laws of their own country, the marriage in the foreign state will nevertheless be valid in the country where the parties live." In the opinion the court say: "The law now in force in this state not only prohibits the marriage of negroes and mulattoes with white persons, but expressly declares such marriages to be void. But they are only void if contracted within this state, in violation of its laws. If the marriage takes place in a state whose laws allow it, the marriage is certainly good there; and it would produce greater inconveniences than those attempted to be guarded against, if a contract of this solemn nature, valid in a neighboring state, could be dissolved at the will of either of the parties, by stepping over the line of a state, which might prohibit such marriages." In Van Voorhis v. Brintnall, 86 N.Y. 18, in the syllabus, the court say: "The validity of a marriage contract is to be determined by the law of the state where it was entered into; if valid there it is to be recognized as such in the courts of this state, unless contrary to the prohibitions of natural law, or the express prohibitions of a statute. While every state can regulate the status of its own citizens, in the absence of express words, a legislative intent to contravene the jus gentium under which the question of the validity of a marriage contract is referred to the lex loci contractus cannot be inferred; the intent must find clear and unmistakable expression." The court cite Medway v. Needham, supra, and also quote from Putnam v. Putnam, 8 Pick. (Mass.) 433, the following: "If it shall be found inconvenient, or repugnant to sound principle, it may be expected that the legislature will explicitly enact...