State v. Sherwood

• Decision Date: 28 July 1896
• Citation: 68 Vt. 414,35 A. 352
• Parties: STATE v. SHERWOOD.
• Court: Vermont Supreme Court

35 A. 352

68 Vt. 414

STATE

v. SHERWOOD.

Supreme Court of Vermont. Rutland.

July 28, 1896.

Exceptions from Rutland county court Clinton L. Sherwood was convicted of bigamy, and excepts. Reversed.

The evidence of the state tended to show that the respondent was married to one Nellie E. Barry on August 25, 1891, at Montpelier, Vt, and that he continued to reside with her as his wife in the town of Newport N. H., until about January, 1896; that April 8, 1896, he was married to one Matie E. Barney, at Rutland, Vt The respondent claimed that Nellie E. Barry was a married woman at the time of his marriage to her, and that, therefore, said marriage was void. As tending to support this, he offered the evidence set forth in the opinion of the court in reference to her marriage with one Charles Palmer. The respondent also offered to show that in January, 1896, shortly before his marriage with the Barney woman in April, the said Nellie E Barry had told him that she was the wife of the said Charles Palmer at the time of her first marriage with the respondent In 1891, but that since then she had procured a divorce from said Palmer, and that she was willing to remarry him, the respondent, and that the respondent relied upon this in contracting his last marriage with Mrs. Barney. This testimony was excluded. The respondent moved in arrest of judgment for that the information was bad. It contained two counts which were in substance as follows: (1) "That Clinton L. Sherwood, of the city of Rutland, in said county at the city of Rutland, aforesaid, on the 8th day of April, A. D. 1896, did marry and have for his wife one Matie B. Barney, and at the time of said marriage of the said Clinton L. Sherwood to the said Matie B. Barney he, the said Clinton L. Sherwood, had a lawful wife then Irving." (2) "That Clinton L. Sherwood, of the city of Rutland, in the county of Rutland, on the 25th day of August, A. D. 1891, at Montpelier, in the county of Washington, did marry and have for his wife one Nellie E. Barry, and afterwards, while the said Nellie E. Barry was living, did, on the 8th day of April, A. D. 1896, at the city of Rutland, in said county, marry and have for his wife one Matie E. Barney, and afterwards, on the 18th day of April A. D. 1896, at the city of Rutland, aforesaid, did unlawfully and feloniously have both the said Nellie E. Barry and the said Matie B. Barney for his two wives at one and the same time."

J. C. Jones, State Atty. Butler & Moloney, for respondent.

ROWELL, J. This is an information for bigamy. A marriage in fact was proved between the prisoner and the woman Barry on August 25, 1891, and a later marriage in fact between the prisoner and the woman Barney. The prisoner offered, but was not permitted, to show that about 1880 the woman Barry lived some two years at Springfield, Vt., and during all that time cohabited as his wife with one Palmer, who was still alive; that they were reputed to be husband and wife, and introduced each other as such, during all that time; that she kept house for him, and acted and held herself out as his wife, and claimed to be such, and that he so claimed; that since 1891 she declared that she had procured a divorce from Palmer, which was not true; that for about eight years after they lived at Springfield they resided at Newport, N. H., and mere lived and cohabited as husband and wife, occupied the same room, held themselves out as husband and wife, and were reputed to be such, and as such were known and received in that community, and that during nearly all that time her mother and son lived with them; that prior to their going to Springfield, as aforesaid, they lived at said Newport, and were reputed to be unmarried: that they went away, returned in a short time, and said they were married, and thereafter lived together as husband and wife till they went to Springfield. If at the time she married the prisoner she was the wife of another, the marriage was void by statute, and the prisoner's subsequent marriage was not bigamous. Thus "A. takes B. to husband in Holland, and then in Holland take! C. to husband, living B., and then B. dies, and, living C, she marries D., this is not marrying a second husband, the former being alive, for the marriage to C, living B., was simply void, and so he was not her husband; but, if B. had been living, this had been felony to marry D. in England." Lady Madison's Case, 1 Hale, P. C. 693, ruled about 1648. This has been the law ever since. Halbrook v. State, 34 Ark. 511 When a marriage in fact or a fact of marriage is proved, the mere legal presumption of marriage arising from cohabitation and repute is not sufficient to establish a marriage set up to defeat it, but the marriage thus set up must also be proved as a fact, like the other. Poultney v. Fairhaven, Brayt. 185; Waddingham v. Waddingham, 21 Mo. App. 609; Jenkins v. Jenkins, 83 Ga. 283, 9 S. E. 541; Appeal of Reading Fire Ins. & Trust Co. (Pa. Sup.) 6 Atl. 60, note 57 Am. Rep. 454; 1 Bish. Mar., Div. & Sep. § 1034. This is because there are...