State v. Shattuck

• Decision Date: 17 July 1897
• Citation: 69 Vt. 403,38 A. 81
• Parties: STATE v. SHATTUCK.
• Court: Vermont Supreme Court

38 A. 81

69 Vt. 403

STATE

v. SHATTUCK.

Supreme Court of Vermont. Windsor.

July 17, 1897.

Exceptions from Windsor county court; Munson, Judge.

Addie Shattuck was convicted of adultery, and alleges exceptions. Overruled.

J. G. Harvey, State's Atty., and W. W. Stickney, for the State.

W. B. C. Stickney, for respondent.

ROWELL, J. The charge is that the prisoner, an unmarried woman, committed adultery with Coburn, a married man. It appeared that Coburn's first wife, who is still living, obtained a divorce from him in this state in December, 1895; that on June 13, 1896, he and Grace Hoisington, both of whom were then domiciled in Windsor, in this state, went to Claremont, N. H., and were there married by a clergyman authorized by the law of that state to solemnize marriages; and that immediately after the marriage they returned to Windsor, where they have lived ever since, and where they first cohabited as husband and wife, never having cohabited as such in New Hampshire. The only evidence of the law of New Hampshire respecting marriages was chapter 174 of the Public Statutes of that state, entitled "Marriages." That chapter imposes no restraint upon remarriage by the guilty party to a decree of divorce. The court charged the jury that if it found that the marriage ceremony was performed by the clergyman, and that he was authorized to perform it, as his testimony tended to show, and also found that the said Grace cohabited with Coburn under the belief that the marriage was legal, as her testimony tended to show, the marriage was valid, and Coburn was a person with whom the crime of adultery could have been committed. To this the prisoner excepted, and also for that the court did not charge that there was no evidence in the case to show that Coburn, being disqualified by the laws of this state to contract a lawful marriage, was, notwithstanding such disqualification, competent by the laws of New Hampshire to contract a lawful marriage, and that without such testimony the fact of his marriage to said Grace was not made out. This last exception is not sustainable. As we have said, the chapter of the New Hampshire statutes put in evidence is not restrictive in this behalf; and if it be said that some other part of the statutes may be, the answer is that, as such restrictions upon marriage are exceptional, the burden was on the prisoner to show the restriction, if any there is. Hutchins v. Kimmell, 31 Mich. 126, 132. And, as no such restriction exists in the common law of this state, the presumption is that the common law of New Hampshire is like ours in this regard. Ward v. Morrison, 25 Vt. 593, 601. The marriage in question must, therefore, be taken to be valid by the law of New Hampshire. But had it been celebrated in this state, it would be void here, for our statute provides that it shall not be lawful for a divorced libelee to marry a person other than the libelant for three years from the time the divorce is granted, unless the libelant dies; and imposes a penalty on a person who violates that provision, or lives in this state under a marriage relation forbidden by it; and we have recently held that a marriage celebrated in tills state in violation thereof, between parties domiciled here, was void here. Ovitt v. Smith, 68 Vt. 35, 33 Atl. 769. The prisoner claims that this marriage is void here notwithstanding it was celebrated in New Hampshire, and is valid there, for that, when a marriage is absolutely prohibited in a state or country as being contrary to public policy, and leading to social evils, the domiciled inhabitants of that state or country cannot be permitted, by passing the frontier, and entering another state, in which the marriage is not prohibited, to celebrate a marriage forbidden in their own state, and immediately return to their own state, to insist on their marriage being recognized as lawful. It is the common law of Christendom that as to form and ceremony a marriage good where celebrated is good everywhere. But as to capacity to marry the authorities are not agreed, some holding that as in other contracts, it depends upon the law of domicile, and some that it depends upon the law of the place where the marriage is solemnized, as do form and ceremony, and that a marriage good where celebrated is good everywhere, unless odious by the common consent of nations, or positively prohibited by the public laws of a country from motives of policy. It is undoubtedly true that states may control this matter by statute, as Massachusetts does, where it is enacted that when persons resident in that state, in order to evade its marriage laws, and with an intention of returning to reside there, go into another state or country, and are married, and afterwards return and reside in Massachusetts, the marriage shall be deemed void. We have no such express provision. The language of our statute is general, and it is a...