State v. Hughes

• Decision Date: 07 October 1886
• Parties: THE STATE OF KANSAS v. CHASTEEN HUGHES
• Court: Kansas Supreme Court

12 P. 28

35 Kan. 626

THE STATE OF KANSAS v. CHASTEEN HUGHES

Supreme Court of Kansas

October 7, 1886

Appeal from Shawnee District Court.

PROSECUTION for bigamy. At the September Term, 1885, the defendant Chasteen Hughes was tried, found guilty, and sentenced to be confined in the penitentiary for one year. He appeals.

Judgment affirmed.

Jetmore & Son, for appellant.

S. B Bradford, attorney general, and Charks Curtis, county attorney, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is an appeal from a judgment of conviction rendered against the appellant for bigamy. It was alleged in the information that --

"Chasteen Hughes, at the county of Shawnee, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the 21st day of March, 1885, did then and there unlawfully and feloniously marry one Loretta Cavender, and her, the said Loretta Cavender, then and there had for his wife, and the said Chasteen Hughes then and there being a married person being then and there married to one Mary Hughes, she, the said Mary Hughes, being then and there alive, and the bond of matrimony between the said Chasteen Hughes and Mary Hughes then being still undissolved."

It is insisted by the appellant that the information is defective in this, that it does not state the time and place of the first marriage; and the refusal of the court to quash the information upon that ground, is the first objection which is made. The objection is not good. There is nothing in the statute nor in the nature of the offense requiring such particularity of averment. The offense, as defined by statute, consists in marrying a second time while the husband or wife of the defendant is still living. That the accused had a wife living at the time he contracted the second marriage, is an essential allegation which should be stated with precision. But information of the exact time and place of the first marriage is not always available to the prosecution, nor is it very important to the defense. It is enough to allege and show that the marriage relation had been entered into and existed between the accused and his first wife at the time of the second marriage. The information clearly charges that the defendant had a wife living at the time of the second marriage, and the first wife is identified and described by name, which is sufficient to apprise him of the particular offense against which he is required to defend. The substantial rights of the defendant upon the merits could not have been prejudiced by the absence of these averments, and the ruling of the court upon the motion cannot be held erroneous. (Crim. Code, § 110; Hutchins v. State, 28 Ind. 34; State v. Bray, 13 Ired. 289; State v. Armington, 25 Minn. 29.)

The principal question presented upon the appeal is the competency and sufficiency of the testimony offered to establish the alleged first marriage of the appellant. This question arises upon an objection to testimony offered by the state of the admissions and conduct of the defendant, with respect to the first marriage, and upon the charge of the court. The learned judge who tried the case refused to charge the jury that there must be proof of a formal celebration of the marriage ceremony, but gave the following instruction:

"The marriage between a man and a woman in this state is a civil contract to which the assent of the contracting parties is essential, and may be proven in this case like any other fact. The evidence of the admissions of the defendant that he and Mary Wheat intended to marry, the defendant's admissions that he and Mary Wheat were married, and the evidence that the defendant and Mary Wheat cohabited together as husband and wife, and that he held her out to his neighbors and friends as his wife, and that there was a child born to them while cohabiting together, tend to prove the fact that the defendant and Mary Wheat were married, and were husband and wife."

The doctrine of this instruction is denied by the appellant, and he contends that the admissions and evidence of cohabitation are inadmissible and insufficient to prove the first marriage until there is introduced some record evidence, or evidence by the officiator, or the testimony of an eye-witness, of the formal solemnization of the marriage; and to support his contention he cites Commonwealth v. Littlejohn, 15 Mass. 163; People v. Humphrey, 7 Johns. 314; State v. Roswell, 6 Conn. 446; People v. Lambert, 5 Mich. 349; State v. Armstrong, 4 Minn. 335. The course of decision upon this question has not been uniform. In the states of New York, Massachusetts, Connecticut, and Minnesota, the rule contended for by the appellant has been held, but the weight of authority and the better reason support the proposition that the acts and declarations of the parties, coupled with cohabitation, are competent evidence to go to the jury in proof of marriage.

Mr. Greenleaf, in discussing the proof necessary to sustain the charge of bigamy, lays down the rule that the first marriage "may be shown by the evidence of persons present at the marriage, with proof of the official character of the celebrator; or, by documents legally admissible, such as a copy of the register, where registration is required by law, with the proof of the identity of the person; or, by the deliberate admission of the prisoner himself." (3 Greenl. Ev., § 204.)

In his work on Criminal Law, Mr. Wharton states that --

"When the lex fori recognizes, as is the case in all those jurisdictions in which the English common law continues in force, consensual marriages, the admissions of the parties may be received as tending to establish such marriages, whatever may be the weight to which they may be entitled, provided such admissions have not been extorted by force or fraud." (2 Wharton's Crim. Law, § 1700.)

As a general rule, the confession of a party voluntarily and deliberately made, is evidence of the highest nature against him. The objections urged against testimony of this character in a prosecution for bigamy, are that the confession may have been lightly made, or stated by parties living in a state of fornication for the purpose of avoiding public censure or public prosecution; but these are reasons which go to the credibility rather than to the competency of the testimony. The force and effect of the testimony are to be weighed and determined by the jury, and depend upon the manner and circumstances under which the confession was made. If it was carelessly stated, or the circumstances under which it was made indicated a purpose to conceal from the public illicit relations existing between the parties, the jury should not, upon such unsupported confession, convict the defendant; but where it is freely and solemnly made by parties cohabiting together, and frequently repeated to different persons, with no apparent motives to hide the real facts, it is clearly competent to go to the jury, whose province it is to determine its sufficiency. It is direct and positive proof of an actual marriage. Counsel for appellant conceded that a marriage might be proved by a witness present at the ceremony, and certainly a party to a marriage contract who has complete knowledge of the facts is as competent, and his testimony is of as high a nature, as that of a mere eye-witness, who may be mistaken as to the occurrence, the identity of the parties, or their capability to contract marriage. The confession in this case was that the appellant and Mary Wheat were married in Missouri. In that state it is not essential to the validity of a marriage that there should be any ceremony or formal solemnization of the contract. An agreement entered into in good faith between parties capable of contracting marriage, followed by cohabitation, is there held to be sufficient to constitute a valid marriage, and to subject them to legal penalties for a disregard of its obligations. (Dyer v. Brannock, 66 Mo. 391.)

By the terms of our statute, a marriage which is valid where it is contracted must be held valid in all courts and places in this state. (Comp. Laws of 1879, ch. 61, § 9.) If this marriage was then a mere consensual one, as it might have been, how can it...