95 Pa. Super. 261 | Pa. Super. Ct. | 1928
Argued December 10, 1928.
By this appeal we are asked to reverse the conviction of appellant in the municipal court of Philadelphia of the crime of bigamy. The indictment was drawn under the Act of March 27, 1903, P.L. 102, and charged in substance that appellant in 1920 entered into "a certain contract of marriage" with Mary E. Thompson, the prosecuting witness, and afterwards, in 1928, while still married to and the lawful husband of the prosecutrix, unlawfully married one Catherine Chism Logan. The defendant demurred to the evidence introduced by the Commonwealth, thereby admitting all the facts which it tended to prove and all inferences reasonably deducible therefrom: Com. v. Ernesto et al.,
The assignments charge error in refusing to sustain the demurrer and, although several reasons are advanced in support of appellant's contention, it is clear that the controlling question is whether there was any competent evidence on the part of the Commonwealth to support a finding that appellant had ever entered into a contract of marriage with the prosecutrix; in other words, whether the first marriage averred in the indictment was sufficiently proven. The Act of 1903 repealed and supplied the 34th section of the Act of March 31, 1860, P.L. 392, which provided that "if any person shall have two wives or two husbands at one and the same time, he or she shall be guilty of a misdemeanor," etc., and was probably passed to cure the defects in the Penal Code, pointed out in the well considered and comprehensive opinion of SULZBERGER, J., under date of February 14, 1902, in Com. v. Bernard, 11 Pa. District Reports 156. In view of the evidence in this case it would serve no good purpose to compare the provisions of the two acts. The prosecutrix testified positively that no civil or religious marriage ceremony between appellant and herself had ever been performed. The indictment charged, substantially in the language of the Act of 1903, that in 1920 appellant "did enter into a certain contract of marriage with, and did then and there marry one Mary E. Thompson, and the said Mary E. Thompson then had for lawful wife" and in 1928, while she was alive and before the said marriage had been legally declared void or annulled by the decree *264 of a proper court of record, "did unlawfully marry and go through a form of marriage recognized as binding under the laws of the said Commonwealth of Pennsylvania with one Catherine Chism Logan." The inquiry therefore is whether the Commonwealth by its evidence established the existence of a valid common law marriage between the prosecutrix and appellant.
There was evidence of cohabitation and reputation and of the purchasing, mortgaging and leasing of real estate in their joint names, in some of which instruments she is described as appellant's wife. "The joining in conveyances as husband and wife is not conclusive on the question of marriage": McDevitt's Est.,
A witness for the Commonwealth testified that he had boarded with the prosecutrix and appellant for a period of three years; that they had been introduced to him as husband and wife; that "on occasions when they went out they were introduced as Mr. and Mrs. Spohn;" and that they were known generally as husband and wife. On cross-examination, however, this witness testified that he knew there had been no marriage ceremony and that he had frequently heard them discuss the question of having a ceremonial marriage. A part of his testimony reads: "Q. I asked you if you knew they were not married and you said yes, and so we will not be mistaken. I want you to tell in detail how you knew they were not married. A. It was discussed at the place between the two of them. George wanted to get married quite a few times and May didn't want to. Q. She didn't want to? A. Not at that time. Q. They discussed it frequently? A. Yes, they discussed it frequently. Q. Take one or the other, they at one time or another wanted to get married, when one did the other didn't — when May Thompson wanted to get married, George didn't, and *266 when George did, she didn't. A. Yes. Q. They talked about it very frequently? A. Yes."
In the Estate of Robert Murdock,
There is not a particle of evidence in the present case that the prosecutrix and the appellant "entered into a contract of marriage" by words in the present tense, uttered with a view to establishing the relation of husband and wife; the strongest inference that can be drawn from the evidence introduced by the Commonwealth is that they had an "understanding" that they would be legally married some time in the future. After careful consideration of all the evidence we are of opinion that the demurrer should have been sustained and the defendant discharged.
The order of November 2, 1928, placing the defendant on probation and declaring the marriage of defendant to Catherine Chism Logan on February 14, 1928, null and void, is reversed and the defendant is discharged.