State v. Johnson

• Decision Date: 01 January 1867
• Citation: 12 Minn. 378
• Parties: STATE OF MINNESOTA v. GEORGE JOHNSON.
• Court: Minnesota Supreme Court

Page 378

12 Minn. 378

STATE OF MINNESOTAv.

GEORGE JOHNSON.

Supreme Court of Minnesota.

Error to the district court, Winona county.

Berry & Waterman, for plaintiff in error.

Wm. Colvill, Atty. Gen., for the State.

BERRY, J.

At the March term, 1866, of the district court for the county of Winona, an indictment was found against the plaintiff in error, in which he is accused of the crime of polygamy, committed as follows: "That the said George Johnson, on the eighteenth day of March, A. D. 1835, at the city of Buffalo, in the state of New York, did marry and take to wife one Eleanor Cherry; that afterwards, to-wit, during the year 1856, the said George Johnson, in the county of La Crosse, state of Wisconsin, while his lawful wife Eleanor was still living, did unlawfully marry and take to wife Catherine Flannegan, and the said George Johnson, ever since the said last-named marriage has continued to reside and cohabit with the said Catherine Flannegan in the county of Winona, state of Minnesota; that the said Eleanor Cherry, the former wife of the said George Johnson, is still living in the state of New York, and that the said George Johnson knew at the time of said second marriage, and ever since, that his first and lawful wife, the said Eleanor Cherry, was still living, and that he, the said George Johnson, had never been divorced from the said Eleanor Cherry; and that the said George Johnson has wilfully, knowingly, and feloniously, ever since said second marriage, continued to cohabit with the said Catherine Flannegan in the county of Winona, state of Minnesota, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Minnesota." Upon this indictment the accused was tried, convicted, and sentenced, and he brings the cause into this court by writ of error.

The statute in force at the time this indictment was found, and relating to the crime of polygamy, reads as follows:

Sec. 2. "If any person who has a former husband or wife living shall marry another person, or shall continue to cohabit with such second husband or wife, he or she shall, except in the cases mentioned in the third section, be deemed guilty of the crime of polygamy, and shall be punished," etc.

Sec. 3. "The provisions of the preceding section shall not extend to any person whose husband or wife shall have been continually remaining beyond sea, or shall have voluntarily withdrawn from the other and remained absent for the space of seven years together, the party marrying again not knowing the other to be living within that time; nor to any person who has been legally divorced from the bonds of matrimony, and was not the guilty cause of such divorce." Pub. St. 728.

It will be observed that the indictment in this case does not allege that Eleanor Cherry, the first wife of the plaintiff in error, has not been continually remaining beyond sea. His counsel contends that the exception made where the wife has "been continually remaining beyond sea" is an exception contained in the same clause [of the act] which creates the offence, and that it is therefore necessary, under a rule of pleading, that the indictment should show affirmatively that the exception does not exist in the case in which the indictment is found. It would seem proper to regard the exceptions as made in the same clause which creates and defines the offence of polygamy, to-wit, section 2. For a more particular description of such exceptions, reference is made to section 3, immediately following.

This appears to have been the construction followed in framing indictments for polygamy under the statute of Massachusetts — which is almost literally identical with our own — in Com. v. Boyer, 7 Allen, 306, and in Com. v. Johnson, 10 Allen, 196. Without questioning this rule of pleading or its applicability to this case, the attorney general claims that the want of the allegation referred to is cured by the subsequent allegation "that the said George Johnson knew at the time of said second marriage, and ever since, that his first and lawful wife, the said Eleanor Cherry, was still living." We think this position is sound. Under the statute to which we have referred it has been held in Massachusetts that the words "and remained absent for the space of seven years" apply "as well to the case of the wife remaining beyond sea as to the case where one party has voluntarily withdrawn from the other." Com. v. Johnson, 10 Allen, 198. See, also, Com. v. Mash, 7 Metc. 472.

The same construction is to be put upon our statute, and it must follow that the other words, "the party marrying again, not knowing the other to be living within that time," apply also to both cases. In this view of the statute the fact that the first wife had continually remained beyond sea would not bring the accused within the exception of the statute so long as he knew that his first wife was in life, and the latter fact being alleged, it cannot be necessary to negative the former. 3 Greenl. Ev. § 204.

It will not, then, be our duty in this case to define the phrase "beyond sea." The authorities are not in harmony as to its meaning, some holding that it signifies "out of the state" and some "out of the United States." Whitney v Goddard, 20 Pick. 307; Bank Alexandria v. Dyer, 14 Pet. 145; Rhodes v. Bell, 2 How. 405; Murray's Lessee v. Baker, 3 Wheat. 541; Shelby v. Guy, 11 Wheat. 368; Bouv. Dict. tit. "Beyond Sea;" 3 Parsons, Cont. (5th Ed.) 98; Ang. Lim. § 200.

It is further insisted by the counsel for the prisoner that the indictment is bad, because it does not allege that the second marriage was "unlawful in the state of Wisconsin, where it took place." Whether it is to be presumed — as the attorney general contends — that the law of Wisconsin is in this respect like our own, (see, however, White v. Knapp, 47 Barb. 554,) we do not deem it necessary to determine. If the second marriage was celebrated in Wisconsin, the parties cannot be punished for it in this state. If it was a crime, it was an offense against the peace and dignity of another state. But as we understand the statute, even if the second marriage was lawful where celebrated, "continuing to cohabit with such second husband or wife" while the first is living, by the party marrying again, with knowledge that the first wife is living, is polygamy by our law. Bradley v. B. & M. R. Co. 2 Cush. 544; Regina v. Cullen, 9 Car. & P. 681.

Neither ex comitate, nor on the grounds of public policy, has it been considered that a state is bound to sanction incestuous or polygamous marriages, though valid in another state where they were entered into. Bishop, Marr. & Div. §§ 127, 130, 149; Story, Confl. Laws, § 114; 2 Greenl. Ev. § 460, p. 442, note 1; 2 Kent, 91, note a. The objections to the indictment must therefore be overruled.

A form of indictment for bigamy is prescribed in section 67, p. 759, Pub. St. If that form be applicable and sufficient it is manifest that the indictment in this case is good; but as our attention was not called to the statute by counsel, and no point is made upon it, and as we sustain the indictment on other grounds, we do not deem it necessary to examine the statute referred to.

In the progress of the trial Moses Cherry was put upon the stand by the state and testified "to having been an actual witness to the performance of the marriage ceremony," (between George Johnson, the prisoner, and Eleanor Cherry,) "at the house of the witness, by a Methodist minister; that they stood up together, and the minister performed the ceremony in the usual form, and pronounced them man and wife."

No objection was made to the competency of this testimony. The rule generally laid down is that in a prosecution for polygamy a first marriage in fact must be proved, and this may be done by the testimony of an eye-witness to the marriage. 2 Greenl. Ev. § 461; 2 Stark. Ev. 698, 894; Bishop, Marr. & Div. § 324; Catherwood v. Caslon, 13 Mees. & W. 264. As a marriage in fact must be made out, the question of marriage or no marriage is to be determined by the lex loci contractus; it is also held necessary that it should appear that the first marriage was valid by the law of the place of its celebration. 2 Stark. Ev. 894-5, 705; 3 Greenl. Ev. § 204; Lacon v. Higgins, 3 Stark. 178; 16 E. C. L. 425; Catherwood v. Caslon, 13 Mees. & W. 264. As to this, however, no point is made in this case. The court, against objection, received evidence of admissions of the accused as to the fact that Eleanor Cherry was his wife, also evidence of the cohabitation of the accused and Eleanor Cherry, evidence of the fact that they had three or four children, and evidence of general repute as to their relation of husband and wife.

In State v. Armstrong, 4 Minn. 335, (Gil. 251,) in delivering the opinion of the court Mr. Justice Flandrau says: "But in criminal prosecutions for bigamy, or in adultery where the offense depends upon the defendant being a married man or woman, the marriage must be proved in fact, and a conviction cannot be had upon the admissions of the defendant;" and cites People v. Humphrey, 7 Johns. 314.

Following the rule laid down by the authorities before cited, and recognized in State v. Armstrong, that a marriage in fact must be proven, and by direct evidence, the question now to be considered is whether, in addition to this direct evidence, indirect or circumstantial evidence, as of cohabitation, repute, conduct of the parties, birth of children, and admissions, is admissible on the question of marriage in prosecutions for bigamy.

On this point most of the authorities are not explicit, although generally agreeing that such evidence is not sufficient.

In Gahagan v. People, 1 Parker, Cr. R. 383, and in Hayes v. People, 25 N. Y. 396, while evidence of cohabitation, confessions, and conduct is held to be sufficient to warrant a conviction for bigamy, it is considered to be admissible as corrobo...