Statutes have been enacted in England, and in this country, to remedy this deficiency of tbe common law. Tbe English statute (9 Geo. 4, ch. 31, § 22) provides, that tbe offender may be tried in tbe county where be shall be “ apprehended, or be in custody.”- — 1 Russ. on Crimes, 189. Tlie statute of this State, similar to that of Vermont, Massachusetts, Tennessee, and it may be of other States, provides: “If any person, having a formеr wife or husband living, marries another, or continues to cohabit with such second husband or wife in this State, be or she must, on conviction, be imprisoned in tbe penitentiary, or senténced to hard labor for the county, for not less than two, nor more than five years.” — R. C. § 3599. When this statute is read in connection with tbe common law existing at tbe time of its enactment, it is apparent two offenses are thereby created ; or, rather, tbe common-law offensе of bigamy is declared, and tbe punishment wbicb must follow conviction defined; and a statutory offense, tbe continuance of cohabitation under the vicious marriage making bigamy, punishable as tbe latter offense, is crеated. Tbe offense of bigamy remains, indictable and punishable at tbe place of its commission. If tbe second marriage was in this State, tbe county of its commission is tbe only place in wbicb an indictment for tbe offensе will be. As to this offense, tbe common law is not changed. Necessity for a change is obviated by tbe creation of tbe new offense— tbe cohabitation under tbe second marriage. If tbe marriage was in another State, and tbe cohabitation in this State,
If bigamy was cоmmitted by the defendant, it was not in the county of Cleburn, but in the county of Calhoun. The indictment charges bigamy only, not the continuance of cohabitation. The evidence of cohabitation in Cleburn was not admissible, and was not sufficient to authorize a conviction. If the indictment had been for the cohabitation in Cleburn, the evidence would have been admissible; and if it satisfied the jury of the fact, would have authorized a conviction. To suppоrt a conviction on evidence of cohabitation, an indictment for bigamy is insufficient, because it avers one only of the facts which make up the offense. The Circuit Court erred in its refusal of the first charge requestеd by the defendant.
The statute to which we have referred, fixing the age of consent requisite to a valid marriage, or a marriage binding on the parties, is part of a title of the Code devoted to “Dоmestic Relations,” and of an article devoted especially to “ Marriage.” The first, second and fourth sections of the article are confined to incestuous marriages, which are in express terms prohibited. The third is the section fixing the age of consent, and is without words of prohibition. It is simply definitive of capacity to contract marriage. The fifth, sixth, seventh, eighth, ninth, tenth, and eleventh sections, relate to the solemnization of marriage, the mode of obtaining authority for, and the preservation of legal evidence of it. The twelfth, thirteenth, fourteenth and fifteenth impose penalties for a violation of the preceding sections, by those having authority to solemnize ; and on the probate judge for issuing license to solemnize, or not keeping the proper record of license and solemnization, in violation of the duty imposed on him. There is no pеnalty imposed on persons not of the requisite age, for contracting marriage, or on any person for contracting marriage, in any other than the mode prescribed. A marriage without license from the probate judge, without solemnization by any person authorized by the statute to solemnize it — a marriage merely by the consent of the parties — followed by cohabitation, is valid. The parties stand to each other in the relation of husband and wife, having all the rights, and subject to all .the duties, flowing from a marriage in strict conformity to the statute. — Campbell v. Gullatt,
The case of Shafher v. State, 20 Ohio, 1, is opposed to this view, and opposed, as we think, to the great weight of authority. The general rule prevailing in this country is, that marriages, valid at common law, although not in conformity to statutory regulations, are valid, unless the statutes are prohibitory, or in restraint of them. — Campbell v. Gullatt,
The charge requested did not assert a correct principle, and was properly refused. For the error we have pointed out, let the judgment be reversed, and the cause remanded. The defendant must remain in custody, until discharged by due course of law.