State v. Ray
| Decision Date | 24 November 1909 |
| Citation | 66 S.E. 204,151 N.C. 710 |
| Parties | STATE v. RAY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Alamance County; E. B. Jones, Judge.
A. A Ray was convicted of bigamy, and appeals. Reversed for new trial.
There was evidence on the part of the state to show that defendant intermarried with a former wife, E. T. Ray, in this state, in March, 1895, had two children born of the marriage, and that said E. T. Ray is still living; that defendant later, to wit in August, 1902, having separated from his wife E. T. Ray married one Annie B. Lemonds, who is still living, and a witness in the cause; that this second ceremony took place in Danville, Va., in August, 1902, and, after it occurred, the parties returned to this state, and lived here together as man and wife nearly three years, when defendant left said Annie B. Lemonds. There was evidence, on part of defendant tending to show that after the separation from the first wife, E. T. Ray, he had removed to Indiana, and there obtained a divorce, and that the second marriage took place after decree of divorce duly obtained, and when defendant had a right to marry again. The state in reply offered evidence tending to show that the proceedings of divorce and the decree obtained in same were null and void (1) for want of jurisdiction in the court; (2) by reason of fraud. There was verdict of guilty, and, from judgment on the verdict, defendant excepted and appealed.
Parker & Parker, W. P. Bynum, Jr., and R. H. Hayes, for appellant.
The Attorney General, for the State.
We do not refer to many of the interesting questions presented in defendant's case on appeal, for the reason that the court is of opinion that in no aspect of the state's testimony can the defendant be convicted of the offense charged in the bill of indictment. The state does not contend or claim that such conviction can be upheld except under our statute against bigamy (Revisal 1905,§ 3361). On matters relevant to this inquiry, this section of our law provides as follows: This has long been the law of this state controlling the matter, and appears in terms exactly similar in the Code of 1883 as section 988. Construing this section in State v. Cutshall, 110 N.C. 538, 15 S.E. 261, 16 L. R. A. 130, Justice Avery, for the court, in a forcible and learned opinion, decides that this statute, in so far as it undertakes to punish a defendant for a bigamous marriage occurring beyond the borders of the state, is unconstitutional; and that in the language of the statute, defining the offense, "if any person being married shall marry another person during the life of the former husband or wife, whether the second marriage shall have taken place in the state of North Carolina or elsewhere, etc., shall be guilty of a felony," the expression "or elsewhere" is void and of no effect. An examination of Cutshall's Case will further disclose that it was there directly and necessarily held that the parties to a bigamous marriage occurring without the state could not be indicted and punished under the provisions of this statute by reason of having thereafter returned to the state and lived together as husband and wife. The case in question was determined on appeal by the state from an order quashing a bill of indictment for bigamy. The bill contained three counts: The first charged, in substance, a bigamous marriage occurring in the state of South Carolina. A second charged that, after such bigamous marriage in South Carolina, the parties came back to North Carolina, and lived together as husband and wife. There was a third count in the bill on which a nolle prosequi was entered in the lower court, and the contents are, therefore, immaterial.
The Supreme Court, as stated, held that no offense was charged in the first count because our state law could not be given extra-territorial effect, and that none was charged in the second count, because the statute contained no such provision. Justice Avery, speaking to this last question said: "The additional count, in which it was charged that the defendant, after the bigamous marriage in South Carolina, came into North Carolina and cohabited with the person to whom he was married, cannot be sustained, because the offense is not covered by the statute"; and a perusal of the law gives clear indication that the court has correctly construed it in Cutshall's Case. The only offense created and defined by this section of the statute is the "second marriage while a former husband or wife is still living." This is declared to be felony, and it is the only act made criminal by the law, for it is perfectly plain that the subsequent words of the statute, "and any such offense shall be dealt with, tried, determined and punished in the county where the offender shall be apprehended or be in custody," refers only to the venue of the crime defined in the first clause; "such offense" being, as stated, the second marriage, "the former husband and wife still living." Coming back into the state after a bigamous marriage elsewhere and a living together by the parties as husband and wife might, and ordinarily would, constitute the crime of fornication and adultery. State v. Cutshall, 109 N.C. 764, 14 S.E. 107, 26 Am. St. Rep. 599. But there is nothing in this statute which makes such conduct a felony, or which deals, or attempts to deal, with it one way or another; and the expression "or elsewhere"--that is, a bigamous marriage beyond the borders of the state--having been declared of no effect by the courts, because contrary to the law of the land, there is nothing in the statute which applies to the conduct of the defendant, and he is entitled to go quit of any further molestation by reason of any indictment predicated and necessarily dependent upon it. There are decisions in many of the...
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