64 So. 183 | Ala. Ct. App. | 1913
While an infant under the age of consent, being at the time between 14 and 15 years of age, the defendant contracted a marriage, which was followed by voluntary cohabitation of the parties to the ceremony in recognition of the marital relation for a short time (not more than a day or two, according to the defendant’s testimony on the trial), when he left
The defendant as a witness in his own behalf testified that he remained with his first wife one or two days after the marriage, during AAdiich time they occupied the relation of husband and wife, .that he discovered or learned during this time that she was unchaste before her marriage, and that he then left her and had not lived or cohabited with her since that time. The defense then offered to show by the defendant, testifying as a witness in his oavu behalf, that he had told his first Avife at the time he left her that he “was no longer her husband, and that she was no longer his Avife”; that he had then and there severed the marriage relation and disaffirmed the marriage. The court sustained the objection of the solicitor to the questions seeking to make this proof, and this ruling of the court presents the principal question for review on this appeal.
The contention is made that this testimony was admissible on the authority of the holding in Beggs v. State, 55 Ala. 108, Avhere it was remarked by the judge rendering the opinion for the court, as dicta, that either party to the marriage, being under the age of consent at the time, upon arriving at age could disaffirm the marriage, thereby avoiding it, and that the second marriage, contracted subsequent to the disaffirmance, Avould not be in violation of laAV. It is plainly stated in the opinion in that case that no question Avas raised in the trial court as to the affirmance or disaffirmance of the first marriage, and that such a question was not presented on the appeal. It was decided in that case that
The first marriage in this case is shown by the evidence to have been a completed matrimonial engagement, not Amid, but at most voidable only as to the defendant because at the time of entering into it he Avas under the age of consent prescribed by statute. — Code, § 4879. Marriage being a civil or social institution intended and calculated to promote the present comfort and futiere happiness of the human family, and fixing as it does a status between the contracting parties Avhich society in general has the deepest interest in maintaining in its integrity and purity, it could not be
It will be seen that it is our opinion that the fact . that the defendant at the time of his first marriage was under the statutory age of consent is no defense to a •charge of bigamy for contracting a second marriage unless the first marriage had been judicially annuled on that ground (Walls v. State, 32 Ark. 565; State v. Cone, 86 Wis. 498, 57 N. W. 50), and that the court was not in error in refusing to allow the defendant to testify as a witness in his own behalf that he had renounced or personally undertaken to disaffirm the relations or status created by the first marriage, shown in this case without conflict in the evidence to have been a marriage in due form, followed by voluntary cohabitation of the parties as husband and wife.
The certified copy of the marriage license introduced in evidence was competent evidence and admissible. — Eldridge v. State, 126 Ala. 63, 28 South. 580.
There was nothing even remotely tending to show . that the defendant had reason to believe that the first wife was dead- at the time he contracted the second marriage, or that lie had -ever made any inquiry in that direction, or received information to that effect. On the contrary, it. was shown, without conflict in the evi- • deuce, that the first wife had continued to live in the . same county in which she resided at the time of her marriage to the defendant during the entire period of time covered between the first and second marriages
Other objections to the testimony are not of sufficient merit to require discussion. The evidence without conflict proved every essential fact necessary to establish the defendant’s guilt, and the court properly gave the charge requested by the state.
No error is shown, and the judgment of conviction is affirmed.
Affirmed.