State v. Smith
| Decision Date | 14 May 1915 |
| Docket Number | 9105. |
| Citation | 85 S.E. 958,101 S.C. 293 |
| Parties | STATE v. SMITH. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court, of Cherokee County Thos. S. Sease, Judge.
H. L Smith was convicted of bigamy and he appeals. Affirmed.
J. B Bell and Butler & Hall, all of Gaffney, for appellant.
A. E. Hill, of Spartanburg, for the State.
Defendant appeals from sentence on conviction of bigamy. In 1882, he married Leonora Harris the daughter of his half-sister. They cohabited as man and wife for 30 years or more, and raised a family of seven children. Some 3 or 4 years ago, they separated. In 1913, after the separation defendant married another woman, M. E. B. Harris, and cohabited with her as his wife up to the time of the trial, at which time both women were alive. The sole defense is that the first marriage, being within the degrees prohibited by statute, was incestuous and void, and therefore the second was not bigamous.
Questions affecting marriage and its consequences are of grave importance to the citizens and the state, and they deserve the most careful consideration.
In State v. Barefoot, 2 Rich. 209, decided in 1845, it was held that a nephew might lawfully marry his aunt; and having married again while she was alive, he was guilty of bigamy. In that case, the court pointed out the difference between executory and executed contracts of marriage, and, also, the difference between marriages which are void and those which are only voidable--differences of the utmost importance in the determination of the status and rights of the immediate parties thereto, and the consequences, as they affect the innocent offspring of such unions, and society, or the state. It was there shown that at common law the marriage in question was not void, but merely voidable, and until avoided by decrees of a court of competent jurisdiction, it was valid and binding, and the subsequent marriage was bigamous. It was also held, upon clear and cogent reasoning, that, although the immediate parties to such an incestuous union may deserve punishment, their offspring have rights that should not be ignored.
In Bowers v. Bowers, 10 Rich. Eq. 551, 73 Am. Dec. 99, decided in 1858, it was held that a marriage between uncle and niece was so far valid as to protect the claim of the wife, after the death of her husband, to her distributive share in his estate. The avowed object of that appeal was to obtain the review and reversal of the decision in Barefoot's Case. But it was reaffirmed, and the court again pointed out the difference between void and voidable marriages, and showed that the latter must be avoided, if at all, during the life of the parties. The decision in those cases is fully sustained by the authorities therein cited, and is in accord with the great text-writers and the consensus of judicial opinion in England and in this country.
But it is contended that, at the date of those decisions, there was no statute in this state prohibiting such marriages, and no court with power to annul them--a fact which was adverted to in the opinions of the Court--and that, since that time, the Legislature has, by statute, not only prohibited such marriages, but has made the parties thereto guilty of the crime of incest, which was not a crime at common law. The question must therefore be considered as it may be affected by subsequent legislation. The first legislation on the subject appears in the Revised Statutes of 1873, and this has been brought forward in subsequent revisions, and appears in section 3743 of the Civil Code of 1912, which, so far as pertinent, reads:
In passing, it may be remarked that the fact that the relationship in this case is only of the half blood, and therefore not strictly within the prohibition of the statute is of no consequence; for upon reason and authority, the words used in the statute must be taken in their ordinary meaning, and therefore include relations of the half blood, and also illegitimates who are within the prohibited degrees. 16 A. & E. Enc. L. (2d Ed.) 137, and cases cited in notes; 19 A. & E. Enc. L. 1175; 1 Bish. Mar. & Div. §§ 745, 748.
By section 1 of "An act to regulate the granting of divorces," passed in 1872 (15 Stat. p. 30), either party to a marriage the validity of which was doubted or denied was authorized to institute a suit to determine the validity thereof; and, while that act was repealed in 1878 (16 Stat. p. 719), the provision above referred to has been brought forward in subsequent revisions, and now appears as section 3752, Civ. Code 1912. In 1882 (17 Stat. 681), an act was passed, which is now section 3753, Civ. Code 1912, and reads:
"The court of common pleas shall have authority to hear and determine any issue affecting the validity of contracts of marriage, and to declare said contracts void for want of consent of either of the contracting parties, or for any other cause going to show that, at the time the said supposed contract was made, it was not a contract: Provided, that such contract has not been consummated by the cohabitation of the parties thereto."
In 1884 (18 Stat. 857) incest was made a crime, and carnal intercourse between persons within the degrees of relationship within which marriage was prohibited by section 3743, supra, was made incest. Crim. Code, § 388...
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