State v. Richards, 26969.

• Decision Date: 16 November 1928
• Docket Number: No. 26969.,26969.
• Citation: 221 N.W. 867,175 Minn. 498
• Parties: STATE v. RICHARDS.
• Court: Minnesota Supreme Court

221 N.W. 867

175 Minn. 498

STATE v. RICHARDS.

No. 26969.

Supreme Court of Minnesota.

November 16, 1928.

Appeal from District Court, Blue Earth County; Harry A. Johnson, Judge.

W. King Richards was convicted of bigamy, and he appeals. Affirmed.

A. R. Pfau, III, of Mankato, for appellant.

G. A. Youngquist, Atty. Gen., and James E. Markham, Deputy Atty. Gen., and Frank E. Morse, Co. Atty., of Mankato, for respondent.

STONE, J.

Convicted of bigamy, defendant appeals from the judgment. He was first married in South Dakota, July 30, 1925. Notwithstanding, and on July 11, 1927, defendant went through a marriage in form at Tonawanda, N. Y., with a second wife. She returned with him to this state and the two cohabited as husband and wife at Mankato. That cohabitation resulted in the charge of bigamy, and defendant's trial and conviction thereof under section 10180, G. S. 1923.

The facts are not in dispute, and the only error now urged is the exclusion from evidence of a South Dakota judgment annulling the first marriage. That decree was made and filed by the circuit court of Pennington county, South Dakota, November 8, 1927. The bigamous cohabitation had taken place in this state previously. The information was made November 9, and the case came on for trial November 29, 1927. The complaint in the South Dakota annulment action, wherein this defendant was plaintiff and his first wife the defendant, alleged as grounds of annulment that at the time of his first marriage defendant was under the age of consent; that the marriage was contracted without the consent of his parents or guardian, and also that at the time of the said marriage defendant was "of unsound mind, and so remained for more than one (1) month subsequent to the said marriage"; and that during all of the time that defendant and his first wife cohabited he (defendant) "was incapable of contracting, understanding or performing a marriage contract." The decision went for defendant (plaintiff in the annulment action), upon the grounds so alleged, and was "that the said marriage contract * * * was and is voidable, and that the plaintiff is entitled to judgment herein annulling and setting aside the said marriage." The judgment entered "accordingly" was that defendant's first marriage was thereby "canceled, annulled and set aside, and held for naught."

The argument for defendant is that, by reason of the annulment of his first marriage, he was not in fact married at the time of the bigamous cohabitation charged against him, and therefore that he was not and could not have been guilty of bigamy. The very proper premise is that there can be no conviction of bigamy without proof of a valid and existing first marriage. But from there on the argument fails, because at the time of the offense charged against him, after his first marriage and until November 8, 1927, when it was annulled, defendant occupied the status of a married man. That is the determinative thing.

The distinction is recognized by statute in South Dakota, as it is everywhere, between void and voidable marriages. Rev. Code S. D. 1919, § 107. Our own statute makes the same distinction, although not along the same lines. See sections 8580, 8581, G. S. 1923. The South Dakota judgment did not determine that defendant's first marriage was void, inherently, absolutely and for all purposes or at all, but only that it was voidable. It was annulled, not because of any fatal impediment, such as consanguinity within the prohibited degrees, which renders a marriage void everywhere and for all purposes, but because rather and only of reasons giving defendant the right, which he asserted, to have it annulled.

It follows that, at the time of his bigamous cohabitation in this state, defendant occupied the status of a married man. Beggs v. State, 55 Ala. 108; ...