State v. Sellers

• Decision Date: 01 January 1926
• Docket Number: (No. 12075.)
• Citation: 134 S.E. 873
• Parties: STATE. v. SELLERS.
• Court: South Carolina Supreme Court

134 S.E. 873

STATE.

v.SELLERS.

(No. 12075.)

Supreme Court of South Carolina.

Sept.1926.

Cothran, J., dissenting.

Appeal from General Sessions Circuit Court of Marlboro County; C. C. Feather-stone, Judge.

Dock Sellers was convicted of bigamy, and he appeals. Reversed, and verdict of not guilty ordered entered.

M. E. Crosland, of Charleston, and N. W. Edens, of Bennettsville, for appellant.

M. J. Hough, Solicitor, of Chesterfield, for the State.

BLEASE, J. The defendant, Dock Sellers, who was indicted, tried and convicted in the court of general sessions for Marlboro county for bigamy, has appealed to this court. The record is meager, and the facts are not very clearly stated. It appears, however, that the undisputed and material matters, brought out in the trial, are as follows:

(1) That Linnie Bailey, when she was only 11 years of age, was married to Cy Reynolds.

(2) That Linnie, after living with Reynolds as his wife for about four weeks, left him, she being at the time still under the age of 12 years, and they have not since lived together as husband and wife.

(3) That, except as Linnie herself attempted to revoke the marriage to Reynolds, there has been no dissolution or annulment of such marriage. While Reynolds attempted to secure a divorce, it is admitted that this endeavor to do so was not legally accomplished.

(4) That thereafter Linnie married, or attempted to marry, the defendant, Sellers, with whom she lived a short while.

(5) That the defendant later married Edith Hewitt.

The state based its charge of bigamy against the defendant on account of his marriage to Edith Hewitt, when his marriage to Linnie Bailey (or Reynolds) was still of force. The defense was that the marriage of defendant to Linnie was not valid, because of her prior marriage to Reynolds, and that the marriage of defendant to Edith Hewitt was therefore valid and not bigamous.

At the close of the testimony, the defendant moved for the direction of a verdict of not guilty on the ground that all the evidence showed that the marriage of defendant to Linnie was void because of her prior marriage to Reynolds, and that defendant's marriage to Edith was legal. The circuit judge refused this motion on the ground that the marriage of Linnie to Reynolds was void on account of her age, and that her marriage to the defendant was valid.

The judge charged the jury as follows:

"If you are satisfied from the evidence that at the time Linnie Bailey undertook matrimony with Cy Reynolds in 1908 she was under 12 years of age, then I charge you that any attempted marriage on her part was null and void, and that would not prevent her from contracting legal matrimony with the defendant in 1920."

The appeal alleges error in refusal to direct a verdict of not guilty, and in charging the law as quoted above. Both the assignments of error will be disposed of together, as they raise the same question.

"Bigamy was not a crime at common law, but an offense of exclusively ecclesiastical cognizance." By statute, it was made a felony in England. 3 R. C. L. P. 796. It seems the first legislative enactment in this state, defining the crime and fixing the punishment therefor, took place about the year 1712. Our present law on the subject is found at section 374 of volume 2 of the Code of 1922, and is as follows:

"Whoever, being married, and whose husband or wife has not remained continually for seven years beyond the sea, or continually absented himself or herself, the one from the other, for the space of seven years together, the one of them not knowing the other to be living within that time, or who were not married before the age of consent, or where neither husband nor wife is under sentence of imprisonment for life, or whose marriage has not been annulled by decree of a competent tribunal having jurisdiction both of the cause and the parties, shall marry another person, the former husband or wifebeing alive, shall, on conviction, be punished by imprisonment in the penitentiary for not more than five years nor less than six months, or by imprisonment in the jail for six months, and by a fine of not less than five hundred dollars."

It will be observed from the first three words of the statute, "Whoever, being married, " and the later expression therein, "shall marry another person, the former husband or wife being alive, " that it is necessary before one may be convicted of the crime of bigamy that it must be established that he was married to another person. The prior marriage necessary to sustain the offense, as defined in the statute, must, of course, be such a marriage as is recognized in the law.

While it must be shown that the defendant, in a bigamy case, had contracted a first marriage at the time of his attempted second marriage, it appears that if the first marriage was voidable, and not void, yet the crime is complete. The general rule seems to be this:

"The foundation of the crime of bigamy is always a valid first marriage, which is in fact a part of the corpus delicti, and the pressure in point of evidence usually relates to it. It must be proved as a fact and the question of its validity must be determined by the law of the place where the ceremony took place. The evidence should show that the parties in some form before some duly authorized person, where common-law marriages are not recognized, declared that they took each other for man and wife; and this contract of marriage alone is sufficient whether or not it was followed by cohabitation. If the prior marriage is void the subsequent marriage is legal, as bigamy can occur only through the marriage of a person already married. [Italics ours.] A good example of these principles occurs where a man marries a second wife in the lifetime of the first, and then the first marriage is dissolved by death or divorce, and he marries a third wife, in which event he can be convicted of bigamy for the second marriage but not for the third. The second marriage is a nullity and the third marriage is binding. Of course, there may be cases where the cohabitation with the second wife after the termination of the first marriage operates as a common-law marriage. If, for example, the second wife knows the facts in regard to the first marriage and after its termination consents to live with the man openly as his wife, she may thereby acquire the status of a wife; but if she never knew of the first marriage and never entered into a new contract of marriage after the termination of the first marriage there can be no question that the second marriage would be void so far as a prosecution for bigamy is concerned But although a void first marriage is insufficient on which to found a charge of bigamy a marriage merely voidable may he enough. So a marriage with a person under the age of consent, or even one solemnized by an unauthorized person, may be a valid basis for a prosecution for bigamy." (Italics ours.) 3 R. C. L. p. 799, par. 7.

Pointing, as authority, to decided cases from jurisdictions other than our own, to sus tain the doctrine that a voidable marriage, made so because of the want of age in one or both of the contracting parties, will sometimes support a charge of bigamy, Corpus Juris has this to say:

"A voidable marriage will support an indictment for bigamy, inasmuch as it is binding, in general, on the parties thereto until it is set aside under a direct proceeding instituted for that purpose. A prior marriage, voidable for the want of legal age of either, or of both, of the contracting parties, will sustain a conviction for bigamy, unless such marriage has been judicially annulled because contracted under the statutory age of consent, unless there was a separation with the consent of the minor before attaining majority, or unless the marriage was not confirmed by cohabitation after arriving at the age of consent." 7 C. J. 1159.

Agreeable to the view that it is only necessary to establish a "voidable marriage" to support an indictment for bigamy is the case of State v. Smith, 101 S. C. 293, So S. E. 95S, Ann. Cas. 1917C, 149. In that case, the defendant had first married his niece of the half blood; without any annulment of that marriage, and while the first wife was still alive, he married again. This court held that at the time of the marriage to the niece such marriage was not void under the law of this state, but only voidable, and, since there had been no proceedings to have the same declared invalid, the second marriage was bigamous. In the opinion therein, Mr. Justice Hydrick quoted with approval the distinction between void and voidable marriages, as laid down by Mr. Bishop, which we set out:

"A marriage is termed void when it is good for no legal purpose, and its invalidity may be maintained in any proceeding, in any court, between any parties, whether in the lifetime or after the death of the supposed husband and wife, and whether the question arises directly or collaterally. A marriage is voidable when in its constitution there is an imperfection which can be inquired into only, during the lives of both of the parties, in a proceeding to obtain a sentence declaring it null. Until set aside, it is practically valid; when set aside, it is rendered void from the beginning."

While, as pointed out, a prior voidable marriage will sustain an indictment for the crime, "an indictment for bigamy cannot be sustained, where the prior marriage was void." 7 C. J. 115S.

In the case at bar, the marriage of Linnie and the defendant was, clearly, not a voidable marriage. That contract of matrimony was either void ab initio, or absolutely valid. Since it is admitted that the defendant had full capacity in the law to enter into that contract, the inquiry leads to an examination into the capacity of Linnie to do so. Obviously, if the marriage of defendant to Linnie was void ab initio as to her, it was likewise so void as to the defendant. Then, the pivotal point is the legal capacity of Linnieto marry the defendant....