| Mass. | Oct 14, 1907
This is an indictment for polygamy. At the trial it appeared that the defendant was married on September 18, 1895, to Grace P. Batchelder, in whose favor, on September 10,1900, a decree nisi for divorce was granted, which was made absolute on March 11, 1901. These events occurred in this Commonwealth. On January 26,1901, the defendant, then having been living four months in Georgia, married there Minnie C. Tourtellotte (she entering into the marriage in good faith and in the full belief that his former marriage had been annulled by divorce), and lived with her for six months after the marriage, at Atlanta in that State, and then separated from her. The defendant and the said Minnie both came to this Commonwealth, but not at the same time, and subsequently cohabited here as husband and wife under the Georgia marriage until March, 1904, no further marriage ceremony between them having at any time been performed. On August 16, 1905, the defendant married Jennette H. Smyth in this Commonwealth, and subsequently lived with her in Boston. The three women were alive at the time of the trial.
To show the law of Georgia, the defendant introduced in evidence the Third Title, c. 1, art. 1 of the Code of the State of Georgia: Domestic Relations, and all sections of the sub-title Marriage and Divorce relevant to the case at bar, particularly the section “ Essentials of Marriage,” and the section on what
The case is before us upon a report; and the question is whether at the time of his marriage to Smyth the defendant was the lawful husband of the woman between whom and him the ceremony of marriage in Georgia took place.
It is plain that, since at the time of that ceremony he had not been completely divorced from his first wife, the ceremony was illegal and void. Code of Georgia, ed. of 1895, §§ 2412, 2416. It is argued, however, by the Commonwealth, that by the cohabitation in Georgia between the parties as husband and wife subsequent to the absolute decree of divorce between the defendant and his first wife, a valid marriage was established under the law of that State. This contention makes it necessary to examine that law.
The law of another State is to be proved like any other fact. We cannot take judicial cognizance of it. In the total absence of any evidence whatever, the common or unwritten law of another State may be taken here to be the same as the law of this State. But the statute or written law must be proved, and we are confined to the proof introduced in evidence at the trial. Hackett v. Potter, 135 Mass. 349" court="Mass." date_filed="1883-09-10" href="https://app.midpage.ai/document/hackett-v-potter-6421022?utm_source=webapp" opinion_id="6421022">135 Mass. 349, 350, and cases cited.
Inasmuch as the marriage ceremony in question was illegal and void because of the fact that the defendant then had another wife, it is plain that, if the common law of Georgia is the same as that of Massachusetts, the difficulty was not cured by the cohabitation after the defendant had been fully divorced from his first wife. The solemnization of the second marriage being unlawful, the cohabitation was unlawful in the beginning, and could become lawful only upon a new solemnization after the impediment had been removed. Thompson v. Thompson, 114 Mass. 566" court="Mass." date_filed="1874-01-15" href="https://app.midpage.ai/document/thompson-v-thompson-6417628?utm_source=webapp" opinion_id="6417628">114 Mass. 566. It is argued, however, by the attorney for the Commonwealth, that in this respect the common law-of Georgia is different from that of Massachusetts, in that a new solemnization in a case like this is not necessary to validate the marriage; and he has cited upon his brief some decisions of the Supreme
It is however urged by the Commonwealth that even if no lawful marriage existed while the parties lived in Georgia, yet when they afterwards cohabited in Massachusetts they became husband and wife by virtue of R. L. c. 151, § 6, which reads as follows: “If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by divorce, or without knowledge of such former marriage, they shall after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents.”
This statute of course can have no extraterritorial force. It could not have affected the status of the parties to the marriage ceremony in Georgia while they continued to reside in that State. The “ impediment ” was removed several months before they left that State. The statute validates the marriage “ from
According to the terms of the report the verdict should be set aside and a new trial granted.
So ordered.