State v. Stewart
| Decision Date | 06 March 1906 |
| Citation | 92 S.W. 878,194 Mo. 345 |
| Parties | THE STATE, Appellant, v. STEWART |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. C. Orrick Bishop Judge.
Reversed and remanded.
Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Grant Gillespie for the State.
Under section 2169, Revised Statutes 1899, it is the cohabitation within this State which constitutes the crime, if the second marriage was solemnized in another State, when one of the parties thereto had a husband or wife living, in any case where such second marriage would be punishable if contracted or solemnized within this State. The question then arises whether or not the Legislature has the power, in the protection of public morals, to punish a person for cohabiting with a bigamous wife or husband within this State where the second marriage was solemnized beyond its jurisdiction. There is no doubt of the power of the Legislature, or of municipalities deriving their power from the Legislature, to make police regulations designed to promote the health and morals of the community. Laws to prohibit or regulate gambling, sales of intoxicating liquors houses of prostitution, and thus indirectly advance the morals and good order of society, are beyond question. St. Louis v. Fitz, 53 Mo. 582; State v. Whittaker, 160 Mo. 59; State v. Layton, 160 Mo. 474; State v. Thompson, 160 Mo. 333; State ex rel. v. Ashbrook, 154 Mo. 375. While the State cannot under the guise of the police power overthrow rights which the Constitution guarantees, yet the Legislature may do many things in the legitimate exercise of this power which, however injudicious they may seem, are not obnoxious to the objection of being beyond the scope of legislative action. State v. Addington, 77 Mo. 110. Section 2169 does not conflict with any express provision of the Constitution; unless it does, this court will not declare it void. St. Louis County Court v. Griswold, 58 Mo. 175; Phillips v. Railroad, 86 Mo. 540; Railroad v. Shambaugh, 106 Mo. 557; Deal v. Mississippi Co., 107 Mo. 464; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Yancy, 123 Mo. 391. No legislative enactment should be declared unconstitutional unless clearly so, and every reasonable intendment should be made to sustain it. State v. Hope, 100 Mo. 347; State ex rel. v. Jackson Co., 102 Mo. 531; State ex rel. v. Simmons Hdw. Co., 109 Mo. 118; Wells v. Railroad, 110 Mo. 286; Murnane v. St. Louis, 123 Mo. 479; State ex rel. v. Aloe, 152 Mo. 466. The burden is upon him who alleges that the act is unconstitutional to prove it beyond a reasonable doubt. State ex rel. v. Ransom, 73 Mo. 78; State ex rel. v. Laughlin, 75 Mo. 147; State v. Addington, 77 Mo. 110. When the courts are called upon to decide that an act of the Legislature violates the organic law, they begin with every presumption in favor of the validity of the statute. State v. Layton, 160 Mo. 474. The Federal Constitution has not shorn the States of their police power to prohibit or regulate unwholesome trades and occupations or to protect public morals. St. Louis v. Fischer, 167 Mo. 654.
Jas. M. Rollins for respondent.
At the June term, 1905, the grand jury of the city of St. Louis returned an indictment against the defendant, charging him with the violation of section 2169, Revised Statutes 1899. On July 20, 1905, the day prior to the one on which the case was set for trial, defendant filed a motion to quash the indictment, alleging, among other things, that said section of the statute, upon which the indictment was based, was unconstitutional. The motion to quash was sustained by the trial court, and the State tendered a bill of exceptions which was signed and filed, and an appeal taken by the State.
The indictment is in the following words:
Assistant Circuit Attorney.
The motion to quash, omitting caption, was as follows:
I. Section 2169, Revised Statutes 1899, is in these words:
"Cohabiting in this State bigamy, when: Every person, having a husband or wife living, who shall marry another person, without this State, in any case where such marriage would be punishable if contracted or solemnized within this State, and shall afterwards cohabit with such person within this State, shall be adjudged guilty of bigamy, and punished in the same manner as if such marriage had taken place within this State."
By reference to the foregoing statement, it will be noted that the indictment in this cause is predicated on a violation of said section, and was quashed on motion by the circuit court of the city of St. Louis. We are not advised upon what ground the indictment was set aside, but the argument in this court on both sides was directed principally to the constitutionality of the section and to that question we will first address ourselves.
With the right of a sovereign State in the protection of the morals of its own citizenship to make crimes committed elsewhere punishable in her own courts, if the guilty offender shall come within her jurisdiction, we are not concerned in this case. The statute is leveled at an offense against public immorality committed in this State, to-wit, the continued cohabitation in this State under a bigamous and criminal marriage contracted without the State, which would be punishable in this State criminally if contracted or solemnized within this State.
By common law it was not punishable to marry a second time during the life of the first consort or to cohabit under such second marriage, though it was a Canonical offense, but as early as 1604 it was made a felony by an act of Parliament in England and Wales.
The prototype of our statutes on the subject of bigamy and bigamous cohabitation is found in the Statute 9 Geo. IV, ch. 31, sec. 22, which provides that "if any person, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or elsewhere, every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony," etc. This statute is to all intents substantially re-affirmed in 24 and 25 Victoria, ch. 100, sec. 57. Many of our sister States have followed the statute of 9 Geo. 4th, conforming it to our American conditions. That the General Assembly of Missouri has the power, for the protection of good morals and to punish indecency, to make the cohabitation of a man and woman begun under a bigamous marriage in another State, a felony in this State, there can be no sort of question, and it is practically conceded by the learned counsel for the defendant in this case that if the General Assembly had denominated the offense which it denounced in section 2169, Revised Statutes 1899, a felony only and not bigamy there could be no constitutional objection to it. Indeed a similar statute is found in many of our sister States. Thus it is provided by section 4933 of the Iowa Code that, "If any person who has a former husband or wife living marry another person or continue to cohabit with such second husband or wife, he or she, except in the cases mentioned in the following section, is guilty of bigamy," etc.
In State v. Steupper, 117 Iowa 591, 91 N.W. 912, the Supreme Court of Iowa sustained an indictment which charged the defendant with feloniously cohabiting with a woman in Iowa in 1901, after he had feloniously married her in Nebraska, the said defendant at the time of said marriage and cohabitation, having a lawful wife living. The court said: "It is not the...
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