107 A. 185 | Md. | 1919
This is an appeal from a decree dismissing a bill of complaint filed by the appellant against the appellee for a divorce avinculo matrimonii, on the ground of her alleged adultery. They were married on the 22nd of June, 1913, in New Jersey. The testimony of the plaintiff and of another witness, as well as a letter of the defendant, shows that she was guilty of adultery. The bill alleges that from December, 1913, until July, 1915, the defendant left the plaintiff on several occasions and lived with other men, as man and wife; that he forgave her and took her back, but there is no evidence of condonation of the offense committed in July, 1915, and subsequent thereto.
She and another girl and a man were convicted in Camden, New Jersey, of what the plaintiff spoke of in his testimony as high-way robbery, although the record of the conviction was not offered. The plaintiff testified that it was in August, 1915, and that he saw her in jail in December, 1915, but had not seen her since. She was sentenced to confinement in a reformatory institution. She was paroled in January, 1917, and there is evidence tending to show that after she was released, she was seen going upstairs in a boarding house with some man.
On May 6, 1916, the appellant married another woman in Baltimore County, Md., where he went the latter part of August, 1915, and by that woman he had one child, but no child by his first wife. As early as February 2d 1916, as shown by the letter of the appellee, which the appellant offered in evidence, he was paying attention to the woman he afterwards married. He said that he had been going with her about two weeks "towards the latter part of December," but that he had had no immoral relations with her; that they worked in the same place. Their child was born in January, 1917. The plaintiff alleged in his bill and testified that he believed that after his wife was sentenced and imprisoned, he could marry again without obtaining a divorce, and, being under that impression, married in Baltimore County. *455
The appellant was indicted for bigamy in December, 1916, and entered into a recognizance. Nothing seems to have been done with the case until February, 1918, when he plead guilty but was paroled. That was after the testimony was taken in this case, but before the decree was passed. In the appellant's brief it is stated that when he was arrested and the situation became known to him, he ceased to live with the woman spoken of as his second wife, but there is nothing in the bill or in the evidence to that effect. The bill for divorce was filed in October, 1917, and it is stated in it that it is his desire to be divorced, "so that he may again marry the woman whom he married in good faith, and thus make her his legal wife and make her child legitimate."
Our statute is silent as to the defense of recrimination, but it was a bar in the Ecclesiastical courts and has been recognized in many cases in this State, amongst others: Fisher v.Fisher,
The English statute had a proviso that "nothing in this act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years last passed, and shall not have been known by such person to be living within that time." Most of those in this country are in substance similar to that. The leading English case on the subject seems to be Reg. v.Tolson, 23 Q.B. Div. 168, although it was decided *456
by a divided Court of nine to five. It, however, settled the rule there, affirming some earlier cases and overruling some others. It was there held: "That a bona fide belief, on reasonable grounds, in the death of the spouse at the time of the second marriage, is a good defense to a prosecution for bigamy." The English rule has not been followed in many jurisdictions in this country. Without deeming it necessary to discuss the numerous cases, we will refer to State v. Ackerly,
In 7 C.J. 1163, after stating the English rule, which it is said obtains in Canada, the Philippines and in a few jurisdictions in the United States, and adding "but such belief must be the result of proper inquiries and efforts to ascertain the truth," the author states that the prevailing doctrine in this country is directly opposed to the English rule and quotes from Parnell v. State,
There would seem to be no doubt that under the above authorities, and others might be cited, the appellant could not have escaped conviction for bigamy and he, as we have seen, did actually plead guilty of that crime. If the Court was satisfied that he was acting in good faith, as it apparently was, paroling him was a very wise and just disposition of the case. When we come to the question whether he was guilty of adultery, what must be our conclusion? After giving consideration to the case ofState v. Ackerly, which was reported in 79 Vt., we confess we were at first surprised to find the case of State v. Audette,
In a case of bigamy the accused knows that he had had a former wife, and therefore he should not be excused on the ground that he had no reason to make proper inquiries as to whether she was still living, if the time fixed by the statute had not expired, or whether a divorce obtained by or against her was valid. He would have no right to marry again unless his prior marriage was at an end by death, divorce, or in some valid way. But Audette had the right to marry and, unless he had some reason to know or suspect that the woman he proposed to marry already had a husband, he would not *460 ordinarily be expected to make inquiries of others as to whether she was deceiving him, or whether she was already married when she told him, as the reported case shows she did, that she was single, and said when the license was obtained, that it was her first marriage. There is, therefore, no conflict between those cases, and the latter one presents some views which are at least worthy of the most serious consideration.
In 1 R.C.L. 635, par. 7, it is stated: "It is very generally said that the existence of a criminal intent is an element of the crime of adultery that is, that the defendant, knowing the existence of the facts which would constitute the sexual act a crime, nevertheless indulged in the act. The fact of such intent need not be proved by direct evidence. As in many other instances, when intent is an element of the crime charged, it may be inferred from the act done. * * *
"So, if one of the parties was mistaken as to a matter of fact, after exercising due care to ascertain the truth in relation thereto, which fact, had it been true, would have rendered the alleged criminal act legal and innocent, the party so acting under such mistake of fact, is innocent of crime." Citing,State v. Cutshall,
In 14 Cyc. 648, it is said: "To constitute a defense of recrimination, the misconduct of which the complainant is guilty must be such as in itself to afford the defendant ground for divorce, and it must also have been committed by plaintiff knowingly and without connivance, justification or excuse." There is cited in the note, Snook v. Snook, 67 L.T. Rep. (N.S.) 389, but in that case the Court exercised the discretion conferred upon it by the "Matrimonial Causes Act" of 1857. Under the head of "Mistake of Fact" in that same note, the following cases are cited: Whippen v. Whippen,
We are not prepared to hold, however, that in no case should relief be granted, because it is shown that the plaintiff had sexual intercourse with a woman other than his real wife, if it was the result of a bona fide mistake of fact which led the husband to marry the other woman and cohabit with her, in the full belief that she was his lawful wife — provided the circumstances were such that he was justified in his belief that the first marriage had ended and that he had not been negligent or lax in endeavoring to ascertain the actual facts before he entered into the second marriage. One guilty of recrimination is denied a divorce because it is only allowed an innocent party, and no one has the right to base his or her claim for relief on a ground authorized by the statute when he or she has been guilty of the same thing, or of something which furnishes the spouse ground for divorce. But if it be clearly the result of an honest mistake of fact, the Court ought to have some discretion to grant relief in cases where there is no question about the good faith and due diligence of the party. Under such circumstances, it is not altogether accurate to say that the party is not innocent of recrimination, as understood in divorce courts. The consequences to people who are unquestionably innocent — the spouse and children — are so serious that we are not willing simply to draw a line and say in no case can one cross it who married the second time in the lifetime of his first spouse, without first obtaining a divorce.
But after saying what we have, we do not feel that we would be authorized to grant relief in this case. In the first *463 place, the mistake made by the appellant was not one of fact, but of law, and the authorities generally hold that a mistake of law can not excuse one charged with adultery. 2 C.J. 216, 1 Am. Eng. Enc. of L. (2nd Ed.) 751. It is considered in some of the cases cited above. See for example, opinions in Rex v.Brinkley, supra, especially that of JUSTICE MACLAREN. In this case, whether imprisonment justified remarriage was purely a question of law, and not of fact, if there could be any question about it.
But even in the cases which have adopted the English rule, it is distinctly announced that the mistake must be an honest and reasonable one, and the act of the party must not be the result of his negligence or failure properly to inform himself. The appellant was attentive to the second woman he married soon after his wife was imprisoned, and married her a few months afterwards. If he had inquired of any competent clerk in the clerk's office where he got the license, he would doubtless have been informed that his wife's imprisonment did not authorize him to remarry, but he seems just to have followed his own idea about it, if it be conceded that he had a bona fide one, and was married without any justification whatever. Under such circumstances, we can not hold that he should be granted a divorce and must affirm the decree of the lower Court, although we very much regret the position that conclusion places the second wife and the child in.
As has been decided in this State, Fisher v. Fisher,
Decree affirmed, the appellant to pay the costs. *464