Territory v. Harwood
| Decision Date | 09 August 1910 |
| Citation | 110 P. 556,15 N.M. 424,1910 -NMSC- 029 |
| Parties | TERRITORY v. HARWOOD. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
The penal provision of chapter 31, Sess. Laws 1875-76 (Comp. Laws 1897, § 1427), directed against the uniting of persons in marriage under age, were not repealed by chapter 32 of the Laws of the same session (Comp. Laws 1897, § 1430).
Alleged errors in the charge of the court not called to the latter's attention by motion for new trial will not be considered by this court.
Uniting in marriage a female under the age of 15 is penalized by Comp. Laws 1897, § 1427, and knowledge by the officiating officer that such female is under such age is not a necessary element of the offense.
A written memorandum may not be used to aid or supplement the recollection of a witness, unless its correctness when made is first established, and a conviction based solely upon the contents of a memorandum which has not been so verified cannot be sustained.
Appeal from District Court, Valencia County; before Justice Ira A Abbott.
Thomas M. Harwood was convicted of unlawfully uniting in marriage a female under the age of 15 years, and he appeals. Reversed and remanded, with directions.
Modesto C. Ortiz and Edward A. Mann, for appellant.
Frank W. Clancy, Atty. Gen., for the Territory.
The defendant Harwood was indicted for unlawfully uniting in marriage a female under the age of 15 years. From a sentence following a conviction and the overruling of the usual motions, he has appealed.
The first assignment of error is that the indictment states no offense. This proceeds upon the contention that the penal provisions of the statute under which the proceedings were brought have been repealed. The indictment is under chapter 31, Laws 1875-76, appearing as Comp. Laws, §§ 1426-1429. Sections 2 and 3 of that act (Comp. Laws, §§ 1426, 1427) are as follows:
Section 1426, it will be noted, prohibits knowingly uniting in marriage any male or female under the ages, respectively, of 21 and 18. In the case of males under 18 and females under 15, the prohibition is absolute and the marriage is declared invalid. In the case of others, the marriage is permissible by consent of parents or guardians. It is thus seen that only in cases where the male is under 18 and the female under 15 is the marriage declared invalid, and as to these the act of uniting in marriage is made penal. The same Legislature by an act passed seven days after that above quoted (Laws 1875-76, c. 32; Comp. Laws,§ 1430) provides that "no marriage * * * between or with infants under the prohibited ages shall be declared void except by a decree of the district court upon proper proceeding had therein." The argument is that by this later act making such marriages not ipso facto void, but simply voidable by decree of court, there has been repealed the provisions of chapter 31 denouncing as penal the uniting in marriage of persons where marriage is declared invalid by that chapter. We cannot. however, concur in that view. It will be noted that Comp. Laws, § 1427, does not denounce the celebrating of invalid marriages, but of marriages which are by the preceding sections "declared invalid." These latter are marriages within prohibited degrees of consanguinity (Comp. Laws, § 1425), and, as we have seen, the marriages of males under 18 and females under 15. When the Legislature provided that such marriages should be declared void only by court decree, it left them none the less contrary to law and none the less among those "declared invalid" by the preceding act. The effect of the later act was simply to render less harsh the operation of the statute upon the participants in such illegal marriage and their possible and innocent offspring. That the cohabitation of the former should not necessarily be concubinage and the status of the latter bastardy the Legislature provided that the marriage should be declared void only by decree of court. But this was entirely apart from the penalties upon one who celebrated such a marriage. It was manifestly not intended that he should be absolved from punishment simply because a degree of consideration became expedient for those whom he had assisted into the predicament of a prohibited marriage. We therefore deem the earlier act still in force and the indictment founded upon it good against the attack upon it.
Complaint is also made of certain instructions of the court. It being the settled rule of this court that only such errors of this character as are brought to the attention of and sought to be corrected in the trial court will be considered by us, we will confine our consideration of the criticisms upon the charge to what is stated in the motion for a new trial. This latter alleges as to the charge solely that the court erred "in giving the jury the following instructions attached to this motion and made part of this motion, conveying the idea to the jury to find the defendant guilty as he the defendant knowingly had violated the law when there was no evidence to warrant said charge." To the motion is attached the entire charge of the court. The criticism above set out is not clear. Whether construed as an attack upon the charge because there was no evidence to show knowledge of the age of the female, or because the definitions of "knowingly" were inaccurate, we deem it equally untenable for the reason that in our opinion the statute does not make such knowledge an element of the offense. A reference to the language of the act above quoted will show that while there is a prohibition against knowingly uniting in marriage males and females under 21 and 18, respectively when we reach the portions of the statute where the marriages therein declared invalid--i. e., marriages between relatives and of females under 15--are treated, the penalty is for simply "uniting in wedlock any of the persons whose marriage is declared invalid." The reasons for a difference in the degree of...
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