126 Mass. 34 | Mass. | 1878
The status of a party, whose contract of marriage has been judicially dissolved for his fault, has not, in this Commonwealth, been precisely defined. In Commonwealth v. Putnam, 1 Pick. 136, Mr. Justice Wilde says: “ By the divorce, the first marriage was dissolved, and, but for the second section of the act of 1784, o. 40, the second marriage would have been lawful by our laws; ” and adds: “ Notwithstanding the restraints imposed on the husband, he being the guilty cause of the divorce, the dissolution of the marriage contract was total, and not partial.” In West Cambridge v. Lexington, 1 Pick. 506, Chief Justice Parker, in giving the opinion of the court, speaks of such party as “ not being in a legal sense a married man, and perhaps not to be considered as having a former wife living, the decree of divorce having terminated the relation of husband and wife.” We do not deem it necessary in this case to determine whether any or what marital duties or obligations remain upon such person.
By the Gen. Sts. o. 165, § 4, it is enacted that “whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this state, shall (except in the cases mentioned in the following section) be deemed guilty of polygamy.” The following section
In Commonwealth v. Putnam, ubi supra, the guilty party in the divorce suit married again in another state, and was indicted" for the crime of adultery in this state. In Commonwealth v. Hunt, 4 Cush. 49, the guilty party married again, also in another state, and the indictment charged her with lewd and lascivious cohabitation in this state with the party to whom she claimed to be married. In each of these cases the court held that the offence charged was not the offence committed. In-the former case, the jury found a special verdict establishing the facts of the former marriage, the divorce for the defendant’s adultery, his second marriage in Connecticut and his cohabitation in this state. Lincoln, in behalf of the defendant, in argument, is reported as saying, “ Johnson defines adultery ‘the act of violating the bed of a married person.’ The defendant has not done this. He has not violated ány plighted faith to his former wife.” “ The indictment might as well have been for polygamy as for adultery; ” “though in truth he could not be indicted for either, unless he were a married man at the time of the second marriage.” In declaring the result at which the court arrived, Mr. Justice Wilde utters the dictum, “ The defendant should have been indicted on the second section of the act referred to,” which is substantially the same as the Gen. Sts. e. 164, §§ 4, 5. Although a dictum by that magistrate is always entitled to most respectful consideration, it is not to be regarded as the judgment of the court. The dictum is however qualified by the statement, “ The second marriage, with all the other facts constituting the crime of polygamy, should have been set forth in
In Commonwealth v. Lane, 113 Mass. 458, the question pre sented in this case did not arise, and was not considered by the court; for, although the defendant was charged with polygamy, under the same statute, for marrying a second time during the life of the former wife, the defence was that his marriage was a legal marriage under the law of the State of New Hampshire where it was consummated, and the court so held.
These three cases, it is believed, are the only ones which have been decided in this Commonwealth in which the subsequent marriage of the guilty divorced party has been before the court upon an indictment. It is certain, that it has never been decided by this court that such party can be convicted of polygamy under the provisions of the Gen. Sts. o. 165, § 4, or the previous statutes of the same character. Nor do we deem it necessary, for reasons hereafter to be stated, now to decide that question.
If that question could be presented nakedly, it would be «. matter deserving of grave consideration whether the party charged could be said in criminal pleading to be one having a husband or wife living, or as being a lawful husband or wife, but we are quite certain that the facts should be stated which bring the party within the provisions of the statute. It is to be noticed that the exceptions in the statute are not such as are ordinarily introduced in legislation affecting the act done, but relate entirely to the person, and without these exceptions the law would perhaps be construed the same as with them. See
The St. of 1784 was but a reenactment, with of course a different penalty, of the Province law of 6 W. & M. (1694-5) e. 5, against polygamy, with a proviso in relation to continuous absence in almost the identical language of the Gen. Sts. o. 165. 1 Prov. Laws, (State ed.) 171. The St. of 6 W. & M. c. 5, contains also a proviso excepting from its operation divorced parties, but does not distinguish between the guilty and innocent party ; its language being, “ shall not extend to any person or persons, that are or shall be at the time of such marriage divorced by any sentence had, or hereafter to be had, as the law of the Province-in that case has provided.”
Whether the guilty party would at that time have been deemed a divorced party, it is not necessary to inquire. Four years later, by St. 10 W. III. (1698) e. 19, the proviso in relation to time of absence was modified, and it was enacted, “ that if any
Such being the history of the law and its condition till 1841, we feel warranted in inferring that, at that time, the Legislature did not deem the marriage of the guilty party who had been divorced to be polygamy; for in that year was enacted the following statute: “ Whenever a divorce from the bond of matrimony shall be decreed for any cause allowed by law, the guilty party shall be debarred from contracting marriage during the lifetime of the innocent party; and if the guilty party shall contract such marriage, the same shall be void, and such party shall be adjudged guilty of polygamy.” St. 1841, c. 83. This is substantially reenacted in the Gen. Sts. c. 107, § 25.
This kind of legislation has many precedents. Any person who embezzles property is deemed by the statute to have committed the crime of larceny; it is not sufficient, however, in an indictment for such offence, simply to charge stealing in the usual maimer, but the facts which constitute the embezzlement must be set out, with the averment of the legal conclusion that thereby and by force of the statute the party charged has committed the crime of larceny.
If, however, we assume that, prior to the St. of 1841, a divorced party, being the guilty cause of the divorce, might be guilty of polygamy by marrying again during the life of his former wife, still the result must be the same, in this case, as if no such offence could, prior to that statute, be committed; for it is quite clear that, under the existing statutes, the crime of
New trial ordered.