State v. Stuart

• Decision Date: 06 March 1906
• Citation: 92 S.W. 878,194 Mo. 345
• Parties: STATE v. STUART.
• Court: Missouri Supreme Court

92 S.W. 878

194 Mo. 345

STATE v. STUART.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. BIGAMY—WHAT CONSTITUTES — STATUTORY PROVISION—CONSTITUTIONALITY.

Rev. St. 1899, § 2169, reading: "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 second marriage had taken place within this state"—is valid and constitutional, although the offense therein denounced would not have constituted bigamy as that term was and is used to designate the offense defined in Rev. St. 1899, § 2167, providing that every person having a husband or wife living, who

shall marry another person, whether married or single, etc., shall on conviction be adjudged guilty of bigamy, etc.

2. SAME—INDICTMENT—SUFFICIENCY.

Under Rev. St. 1899, § 2169, an indictment alleging that at the time of his second marriage in Illinois defendant had a lawful wife to wit (naming her) living, averring the unlawful second marriage in Illinois, and charging that defendant afterwards, to wit, on the 16th of December, 1903, and from that day until the 18th day of May, 1905, unlawfully and feloniously in the city of St. Louis, within this state, did abide, and live with (naming her) the said second wife— substantially complied with the statute, and was sufficient.

Appeal from St. Louis Circuit Court; C. Orrick Bishop, Judge.

James W. Stuart was indicted for a violation of Rev. St. Mo. 1899, § 2169. From a judgment quashing the indictment, the state appeals. Reversed.

The Attorney General, N. T. Gentry, and Grant Gillespie, for the State. Jas. M. Rollins, for respondent.

GANTT, J.

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, Rev. St. of Missouri, 1889. 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, an an appeal taken by the state.

The indictment is in the following words:

"State of Missouri, City of St. Louis—ss.: Circuit Court, City of St. Louis, June Term, 1905. The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn, and charged, upon their oath present that James W. Stuart, alias George W. Stewart, on the fifteenth day of December, one thousand nine hundred and three, in the county of Alexander, in the state of Illinois, unlawfully and feloniously did marry and take to wife one Wilmer Jones, and to her, the said Wilmer Jones, then and there was married, without the state of Missouri, he, the said James W. Stuart, alias George W. Stewart, then and there still having a lawful wife living, to wit, Loney Wells Stuart; and that the said James W. Stuart, alias George W. Stewart, afterwards, to wit, on the sixteenth day of December, one thousand nine hundred and three, within the state of Missouri, to wit, in the city of St. Louis, aforesaid, and from that day until the eighteenth day of May, one thousand nine hundred and five, unlawfully and feloniously did abide and cohabit with the said Wilmer Jones, and her, the said Wilmer Jones have to wife, the said former and lawful wife, the said Loney Wells Stuart, being then and there still alive; against the peace and dignity of the state. Rich M. Johnson, Assistant Circuit Attorney.

"A true bill. F. P. Crunden, Foreman."

The motion to quash, omitting caption, was as follows: "Now on this day comes the defendant, by his attorney, and moves the court to quash the indictment herein for the reasons following: (1) Because the indictment charges no offense under the laws of the state of Missouri. (2) Because on the face of the indictment this court nor any other court in the state of Missouri has jurisdiction to inquire into nor to try this defendant; it being apparent and charged in the indictment that the alleged bigamous marriage took place in another county and state. (3) Because the charge contained in the said indictment is indefinite, uncertain, and vague, and does not fully apprise the defendant of the offense wherewith he is charged. (4) Because of other reasons and matters apparent upon the face of the record."

1. Section 2169, Rev. St. 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 second 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 morality 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 act of Parliament in England and Wales.

The prototype of our statutes on the subject of Bigamy and bigamous cohabitation is found in St. 9 Geo. IV, c. 31, § 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 counselling, aiding or abetting such offender, shall be guilty of felony," etc. This statute is to all intents substantially reaffirmed in St. 24 & 25 Vic., c. 100, § 57. Many of our sister states have followed St. 9 Geo. IV, 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, Rev. St. 1889, 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, 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, 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 continuation of cohabitation within this state which is important, but it is the fact that in this state cohabitation continues which was commenced in another state under the bigamous marriage." It will be observed that the Iowa statute defines as bigamy the same acts which our statute denounces as such. By section 4185 of the Code of 1876 of the state of Alabama it is provided: "If any person having a former wife or husband living, marries another, or continues to cohabit with such second husband or wife in this state, he or she must on conviction be imprisoned in the penitentiary, or sentenced to hard labor for the county for not less than two nor more than five years." In State v. Brewer, 59 Ala. 101, the Supreme Court of that state, speaking of this section, said: "But section 4185 of the Code declares two offenses of very different constituent elements, although of the same general character and punishable in the same manner. One of the offenses can be prosecuted and punished only in the county in which the unlawful marriage is solemnized. In the other, no matter where the marriage takes place, if bigamous, the offense is complete if the parties thus unlawfully married continue to cohabit in the county in which the indictment is found." By section 2, c. 130, Rev. St. Mass. 1836, under the title of Polygamy, it is provided: "If any person who has a former husband or wife living, shall marry another person or shall continue to cohabit with such second husband or wife in this state, he or she shall, except in the cases mentioned in the following section, be deemed guilty of the crime of polygamy, and shall be...