114 So. 898 | Ala. | 1927
We have carefully examined the respective opinions rendered in the Court of Appeals, and are in accord with the views expressed and result announced by Judge Samford.
The common-law marriage has long been sanctioned in this state (Wall v. Williams,
In such a charge the burden is upon the state to establish the corpus delicti. That is, to prove beyond a reasonable doubt (1) that there was a subsisting valid prior marriage entered into by the defendant; and (2) that a second marriage had been contracted by that defendant while the lawful spouse of the former marriage was living. Parker v. State,
This court has held in bigamy cases that:
"Marriage may be contracted in this state, without ceremony or solemnization, by the consent of the parties, followed by cohabitation. Campbell's Adm'r v. Gullatt,
That is to say, in a criminal offense, of which a second marriage is an ingredient, and where the legal presumption of innocence of the accused contracting the second marriage is indulged, the first marriage may be proved by evidence of former cohabitation with a third person and defendant's declarations or confessions. Langtry v. State,
In civil cases the one attacking the validity of a second marriage on the ground of a subsisting former marriage has the burden of proving that the original or prior marriage has not been dissolved by death or by law. That application of the rule will not be made in a prosecution for bigamy or adultery. Bennett v. State,
In the criminal charge of bigamy (Fletcher v. State,
"There is no occasion for resorting to presumptions, and we find no authority to sustain the doctrine for which appellant contends. In such case the accused has opportunities, above all others, of knowing whether a divorce has been granted, and if so, where proof of the fact may be obtained. Public policy and convenience do not require the state, in this class of cases, to search all records extant for proof of a negative fact peculiarly within the knowledge of the defendant; but, when the state shows that the accused has been married to a woman who was still living at the time of his second marriage to another, it is incumbent upon him to show a divorce from such former wife. State v. Barrow (1879) 31 La. Ann. 691; Commonwealth v. Boyer (1863) 7 Allen [Mass.] 306; 4 Elliott, on Evidence, § 2873; 3 Greenleaf, Evidence (16th Ed.) § 208; Fleming v. People (1863)
In Bennett v. State,
"The onus of proof is on him to show, as a matter of defense, that he had been divorced by competent authority at the time of his second marriage, or that his former marriage had been declared void by competent authority. Such, in substance, was the holding of the court in the case of State v. Barrow, 31 La. Ann. 691. See 1 Bishop on Marriage, Divorce and Separation, § 1149. Mr. Underhill, in his most excellent work on Criminal Evidence (2d Ed.) § 405, announces the same principle: 'A marriage, shown to have been solemnized, will be presumed to be valid until its invalidity is shown. The rule that, when a marriage has been consummated, it will be presumed that the former marriage of one of the parties has been legally dissolved, does not apply in a prosecution for bigamy; so, where the state has shown that the accused has been married to a woman who was *7 still living at the time of his second marriage to another, the burden was on him to show that his former marriage had been legally dissolved.' "
The Chief Justice Mayes states the rule respectively applicable as follows:
"When the fact of whether or not a man or woman is a bigamist is incidentally involved in the pursuit of property rights by different persons claiming matrimonial relations with him or her, the guilty person being dead and having nothing at stake, the law is that the person who seeks to profit by proof of the unlawful relation must establish it by the clearest proof. Such person, in this character of litigation, cannot establish the bigamous marriage by mere proof of a valid first marriage with the first husband or wife living at the date of the second marriage. Such facts must be followed by satisfactory and convincing proof that there had been no divorce from the first marriage before the second was contracted, or the law steps in and presumes the validity of the second marriage. But when the man or woman is before the court on a direct charge of bigamy, when the proof of bigamy is not merely incidental to the accomplishment of some other desired end, the same proof which the law allows to stand as a shield to protect and save innocence is allowed to condemn and punish the guilty. This rule of law has its foundation in charity, that virtue which is pronounced by the Good Book to be the best of all virtues. The foundation of this rule of the law grows out of the fact that it has greater regard for name and character than it has for mere property rights. * * *
"The other cases cited by counsel for appellant are Hull v. Rawls,
The discussion is closed with the following observation:
"Since the rule of law is a rule for the protection of innocence, where the guilty party has no interest involved and is beyond the reach of human laws, it can have no application to him when he is before the court with an interest, and when the state is undertaking to bring him to punishment for the outrage he has committed against society and the law of the land." 7 C. J. 1170-1.
This well-founded distinction relieves the present criminal prosecution for bigamy from that obtaining where the rights of third parties merely were involved. As in Young v. Woodward Iron Co.,
"I don't know anything about any divorce against any of my husbands. I don't know of any divorce proceedings by me or by any of my husbands."
Under such evidence was the discussion of prima facie presumptions and shifting the burden of proof or of the "initial presumption of validity" and its refutation, or that it had not been evidentially disputed." Mr. Justice Somerville quotes from the notes to Pittinger v. Pittinger,
And in McLaughlin v. McLaughlin,
In Williams v. Wilson,
The case of Moore v. Heineke,
"It is conceded by counsel for appellant that on an issue of marriage vel non, evidence of *8
cohabitation and general, uniform reputation, and of the declarations and conduct of the parties while living together, holding themselves out to the world as man and wife, is admissible, and that these facts raise a prima facie presumption of marriage, which will prevail until overcome by evidence or neutralized by counter presumptions. * * * The weight of authority and the decisions of this court support the proposition that the presumption of an actual marriage from the fact of continued cohabitation, etc., is rebutted by the fact of a subsequent permanent separation, without apparent cause, and the actual marriage soon after of one of the parties. Weatherford v. Weatherford,
"The declarations and conduct of the cohabiting parties, while living together, are admissible as of the res gestæ."
Judge Freeman's notes cover (89 Am. St. Rep. p. 198) the whole range of the decisions on this subject — the general rule or presumption is stated from the civil case as follows:
"Every intendment of the law favors matrimony. As is often said, the law presumes morality, not immorality; marriage, not concubinage; legitimacy, not bastardy. When a marriage in fact has been shown, the law raises a presumption that it is valid and casts the burden on him who questions it to establish its invalidity. This is a presumption of more than ordinary strength. It is one of the strongest known to the law: Jones v. Gilbert,
That the former spouse is presumed to be dead after seven years from date last heard from; that the first marriage has been dissolved by divorce, and the burden of proving such a negative is on him who asserts to the contrary, citing only civil cases, 89 Am. St. Rep. 199, 200; and, under evidence to overcome the presumption, says that a person attacking a marriage on the ground that a former spouse of one of the parties is living may introduce evidence affording reasonable grounds for presuming the allegation true, citing civil cases; and he concluded on the authority of Ellis v. Ellis,
"* * * If a wife has no knowledge that her husband, who has left her, had again married until his death, and there was no evidence that she did not consider the marriage as existing, and she testified that she had never procured a divorce and had no knowledge that her husband had done so, no presumption should be indulged that he had procured a divorce. Ellis v. Ellis,
His note to subsection E on the subject of "Evidence in Bigamy Cases" was:
"In a prosecution for bigamy, if the defendant relies upon a divorce as justifying his second marriage, it is incumbent on him to prove it. The state is not required to prove that he has not been divorced from his first wife. Commonwealth v. Boyer, 7 Allen [Mass.] 306; Hanley v. State, 12 Ohio Cir. Ct. R. 584[5] O. C. D. 488."
In his limitations on the presumption he says it does not apply in favor of the second marriage if in contravention of law; that, if one seeks to uphold the second marriage on the ground of divorce, that person is required to show such divorce. (Wilson v. Allen,
In notes (b), (c), and (d) of "Limitations on this Presumption" it is declared (89 Am. St. Rep. pp. 202, 203, 204):
"Both Spouses must Act Inconsistently with Marriage. — It has been held that there must be something based on the acts and conduct of both parties to the former marriage inconsistent with the continuance of such marriage before a presumption of its dissolution by divorce will be presumed. Under this rule, when the parties to a second marriage live in the locality where the first wife resides, and the two wives mingle socially without protest or comment on the part of the first, the presumption should be indulged. Leach v. Hall,
"We are not certain that any decided case has gone the length of indulging a presumption of divorce in favor of a married person who has abandoned his or her spouse and gone to another commonwealth or country, in order to justify a second marriage of such absentee. * * *
"To our mind, the vice of the principal case and of others like Alabama, etc., Ry. Co. v. Beardsley,
"Whether Rule Differs in Criminal Cases. — In the application of these presumptions, there can be little, if any, difference between civil and criminal cases. It is true that a jury may be more ready to draw an inference of the continued existence of a former marriage in a civil than in a criminal proceeding, yet it cannot be that the rules of evidence in each case so differ as that there should be a legal presumption in one case and none in the other. In re Phene's Trust, L. R. 5 Ch. App. 139, 151."
The cases in this country and in England are to the effect that there are no "absolute presumptions against the continuance of the life of one party to a marriage," or of the dissolution of the first marriage state, "in order to establish the innocence of the other party to a subsequent marriage." In each case the question is one of fact, "to be determined like any other question of fact, upon a consideration of the attending facts and circumstances, and such inferences as fairly and reasonably flow therefrom." That there was no inflexible rule or presumption in such cases is shown by the English cases: King v. Twyning, 2 Barn. Ald. 386; Rex v. Harborne, 2 Adol. E. 540; Queen v. Lumley, L. R. 1 C. C. 196; Nepean v. Knight, 2 Mees. W. 894; In re Phene's Trusts, L. R. 5 Ch. App. 139, 150. The English rule is thus stated in Queen v. Lumley, L. R. 1 C. C. 196, saying:
" 'In an indictment for bigamy,' said Lush, J., 'it is incumbent on the prosecution to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date of the second marriage. That is purely a question of fact.' "
Judge Freeman concludes the important question, after reviewing the decisions, as follows (89 Am. St. Rep. p. 206):
"There is no unbending presumption in favor of a second marriage or of the innocence of the parties, but, on the contrary, that the decision of any particular case must rest on its own attending facts and circumstances. Moreover, it is believed that little force should be given this artificial presumption in order to meet the exigencies of a given case. There appears no intimation in the English cases, so far as they have come under our observation, that the dissolution of a former marriage by divorce will be presumed in favor of the validity of a second marriage or of the innocence of the parties to it, although some of the earlier ones have been cited in this country as authority for that proposition. Nevertheless, the authorities affirming this doctrine are numerous, as has already been shown, and it may be considered as settled that such a presumption, in a proper case, may be indulged. However, the presumption of the dissolution of a prior marriage, whether by death or divorce, should *10
be indulged with caution. We apprehend that such presumptions sometimes have been made with very little justification. A rule of law which allows an artificial or technical force to be given evidence, which warrants such presumptions, beyond its natural tendency to convince the mind, and requires courts and juries to presume as true that which probably is false, cannot but be fraught with dangerous consequences. In case there is a conflict of presumptions, it would appear more reasonable that that one should yield which has the least probability to sustain it, rather than that the one in favor of innocence and of the validity of the subsequent marriage should prevail. See Clayton v. Wardell,
In this jurisdiction the rules applicable in a bigamy case (Williams v. State,
" 'On an issue of marriage vel non, evidence of cohabitation and general, uniform reputation, and of the declarations and conduct of the parties while living together, holding themselves out to the world as man and wife, is admissible, and that these facts raise a prima facie presumption of marriage, which will prevail until overcome by evidence or neutralized by counter presumptions.' Moore v. Heineke,
"It was also held in that case that the presumption of an actual former marriage, arising from the fact, of continual cohabitation, etc., is rebutted by the fact of a subsequent permanent separation, without apparent cause, and the actual marriage, soon after of one of the parties. But it was further said: 'Notwithstanding such evidence has been deprived of any aid from the presumption, it is still evidence tending to show, and from which the jury may infer, if it be sufficiently strong and satisfactory, either an actual ceremonial marriage, or an actual consent or agreement to be man and wife, which, when followed by cohabitation may constitute a valid common-law marriage. * * * This court has many times held that in criminal prosecutions for bigamy — an offense of which an actual second marriage is an essential ingredient, and where every legal presumption of the innocence of the accused in contradicting the second marriage is indulged — the first marriage may be proved by evidence of the former cohabitation of the accused with a third person, and of his declarations. Langtry v. State,
See, also, Mickle v. State (Ala. Sup.) 21 So. 66; Parker v. State,
Any other rule would prevent the drawing of reasonable conclusions from the facts in evidence, as they relate to the most serious or vital human conduct. The affirmative charges in question and that denominated as No. 13, in the original record, were properly refused by the trial court.
The writ is awarded, and the judgment is reversed and the cause remanded to the Court of Appeals.
All the Justices concur.
