Graves v. State

99 So. 364 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellant, Graves, was indicted for bigamy,; the indictment charging that Charley Graves on the 17th day of September, 1923, in Perry county aforesaid, did unlawfully, knowingly, and feloniously marry Rena McKenzie, alias Rena Hickman, a married woman, he being a married man; the husband of Rena McKenzie, alias Rena Hickman, and the wife of Charley Graves not being absent from them for seven consecutive years without being known to such persons within the time to be living, and not absenting herself from Charley Graves or Rena McKenzie and remaining without the United States continually for seven years, and the former husband of Rena McKenzie and former wife of Charley Graves not having been lawfully divorced, and the said former wife of Charley Graves and former husband of Rena Hickman not having had the former marriage contracts annulled by a court of competent jurisdiction for the nullity of marriage contracts, and said former marriage of Rena Hickman and said former marriage of Charley Graves not being contracted within the age of legal consent and not annulled by a decree of a competent court. This indictment was demurred to and the demurrer overruled.

The state thereupon introduced testimony of several witnesses and proved the following facts: • That the appellant appeared before a justice of the peace at Richton, Miss., accompanied by a woman, and had a marriage license issued by the circuit clerk of Perry county for the marriage of appellant and Rena Hickman, and the justice of the peace performed a marriage ceremony between the man and the woman. He had never seen the woman before nor since, and did not know whether she was the same woman referred to by other witnesses who had formerly lived at Bogalusa, La. The state also produced evidence that said Graves lived with a woman whom he held out as his wife at Bogalusa, La., some months before the trial of the cause. It proved that Graves abandoned the said woman who had then recently given birth to a child, leaving her the day following the birth of such child, and that one Rena Hickman or Rena McKenzie, left Bogalusa at the same time, and the said Rena Hickman also lived while at Bogalusa with a man as a husband, and that she and he held themselves out and'were recognized by the community as husband and wife. There was a witness also introduced who visited appellant while he was confined in jail, and he testified that the Hickman woman at the time was in jail as the wife of Graves. This witness also testified that he knew Graves at Bogalusa, and that he had a woman and some children there which he held out as his children and his wife, and that they were regarded by the community as husband and wife. There was no proof of a ceremonial marriage between Graves and the woman with whom he lived at Bogalusa; neither was there any proof of a ceremonial marriage between Rena Hickman and the man with whom she lived and who she claimed was her husband at Bogalusa, La.

The state procured two instructions: • First, the court instructed the jury for the state that: “If you believe from the testimony in this case beyond a reasonable doubt that defendant and Rena McKenzie or Rena Hickman, were married in Perry county at a time when defendant had a living, legal wife then you must find him guilty as charged.”

Second: “You are further instructed for the state that, if you believe from the evidence in this case beyond a reasonable doubt that defendant lived in Bogalusa with a woman, whom he held out to the world as his wife, and that they were considered by the community as husband and wife, and reared a family as husband and wife, then under the law they were husband and wife.”

This instruction is assigned for error. It will be noted from a reading of the indictment above ¡ set out that the name of the former wife of Graves, nor the place of marriage is not set forth, but it is alleg*ed in general terms that he married Bena McKenzie, alias Bena Hickman, a married woman, he being a married man. It seems that the indictment was drafted with a view of catching the defendant upon either horn of the indictment. In our opinion the indictment had to set forth something iñ the nature of an allegation with reference to time, place, and circumstance of the former marriage, or it had to name the person with whom the former marriage is alleged to have been contracted. There had to be an allegation showing that there was a valid marriage. While it is not necessary to set forth the former marriage with all the particularity of description that the second marriage is alleged, still it ought to allege enough to inform the accused of the marriage he is alleged to have contracted and not require him to run the gauntlet of any possible proof of a marriage with any person, anywhere, at- any time, in the whole world.

In the second place, we think there was failure in the proof, and it was not sufficient under the Louisiana law to prove merely the living together as husband and wife. As we understand the decisions of that state, it has never recognized the validity of mere marriages by cohabitation and holding out to the world as husband and wife, but requires a ceremonial marriage.

In Johnson’s Heirs’ v. Raphael, 117 La. 967, 42 So. 470, the Louisiana court made the following announcements with' reference to marriage in that state:

“Marriages by private agreement, express or implied, have never been recognized by the laws of Louisiana, which, on the contrary, have always required that a contract of marriage shall be celebrated by a priest, minister, or some . . . public officer, in the presence of three witnesses.”

Second. “While the Civil Code of 1825 inferentially permitted the marriage of slaves, with the consent of their masters, it did not dispense with the celebration of nuptials in such cases.”

Third. “Act 1868, No. 210, p. 278, recognized the nullity of marriage§ by private agreement, whether express or implied, from cohabitation as man and wife, by providing for their validation, conditioned on the authentic acknowledgment of the marriage relation by' the parties in interest.”

Fourth. “Slave marriages, while binding in morals, produced no civil effects until ratified by continued cohabitation after emancipation or by acknowledgment as required by the act of 1868.”

Fifth. “Where a negro man and woman ‘took up with each other’ during the time of slavery, without any celebration whatever of their union, the consent of their master to the continuance of their irregular relations did not have the effect of creating a marriage. ’ ’

In Henderson v. Cargill, 31 Miss. 367, this court held that — “In all cases except in actions for criminal conversation, and in prosecutions for bigamy, the fact of marriage may be established by evidence of the acts and declarations of the parties, by proof of the general repute in the family; and by proof of the declarations of deceased persons, who were related to them by blood or marriage, made ante litem motam.”

In eases of bigamy each marriage should be proven beyond reasonable doubt, and it requires a higher degree of proof in prosecution of this kind than it does in ordinary actions involving property rights or civil status. The state should prove a valid marriage. It may be that proof of a ceremonial marriage would be ample; but in the present case, if there was a marriage between appellant and the woman in Bogalnsa, it must have been considered a marriage under the laws of that state, because there is no proof of a marriage anywhere, and the only place where there is any proof of the acknowledgment of such relation and of the holding out of themselves as married to the world was in the state of Louisiana, and we have seen that by the laws of that state such facts did not create a valid marriage. It appears that the woman and children with whom the appellant lived in Bogalusa had moved from that place. It does not appear clearly how long a time had elapsed between the time the appellant left Bogalusa and the time he contracted a ceremonial marriage in Bichton. Neither does it appear beyond reasonable doubt that the woman with whom the marriage was contracted in Bichton was the same woman as Bena Hickman.

We think the state failed to prove its case, and the judgment will be reversed, the demurrer to the indictment sustained, and the appellant held to await the action of the grand jury on the proper indictment.

Reversed and remanded.