21 Fla. 403 | Fla. | 1885
delivered the opinion of the court:
In April, 1884, at a regular term of . the Circuit Court held in Marion county, the plaintiff' in error, John L. Green, was indicted for polygamy. Such indictment charges that on -the 16th day December, 1866, in the county of Marion, John L. Green was married to one Emeline, that on the 28th day of February, 1884, he married one Lizzie Givens, Emeline, his former wife, being then alive, and said Green never having' been legally divorced from the' saidEmeline. The defendant pleaded not guilty. Was tried and found guilty. The defendant’s counsel then made a motion for a new trial upon several grounds, among others “ because there was no evidence that the defendant was'
To this evidence defendant’s counsel objected as being insufficient to prove the marriage.
The court overruled the objection and defendant excepted. Samuel H. Owens then testified: “ I know the defendant. Knew him before he came to Florida. He was a slave and also Emeline. They were living together in 1855. He came to Florida in 1867, and since he came here he has lived with Emeline as his wife. He lived with her in South Carolina before he camehereand she had several children by him. She had one child, a mulatto, before he lived with her. I don’t know whether the father of the child is living or not.”
W. A. Wilkinson testified: “I am an ordained minister of the Gospel. I performed the marriage ceremony between John L. Green and Lizzie Givens on the --- day of-, 1884.”
The defendant offered no witnesses, and the foregoing is 'all the evidence in the case.
Our statute (McClellan’s Dig., 875, sec. 4,) provides that u whoever having a former husband or wife living marries
This statute in no way changes the rule to be applied in this action for polygamy. These parties came into this State subsequent to the passage of that law. At common law cohabitation and repute were always adequate in questions of legitimacy, and such proof would be sufficient in most civil actions. In a criminal case, however, presumptions do not apply. In cases of polygamy it has always been held that in order to convict the defendant, the mai-riage must be proven by evidence .other than of cohabitation and repute. In'the case of Burns vs. Burns, 13 Fla., 369, this court having this question of the sufficiency of the proof of marriage before them say in the head note: “ In civil writs, generally, presumptive evidence, as distinguished from direct evidence of marriage, is •prima fade ■sufficient, as where a man and woman have cohabited together, speaking habitually to and of each other as husband and wife, and of the time and circumstances of their marriage, and the like; but in suits where criminal conversation, adultery, &c.,. constitute the essence or foundation of the: action, a more rigid rule is required.” In the opinion
In this case there is not the semblance of evidence that the defendant was married to Emeline, and consequently that he was guilty as charged in the indictment.
The judgment is reversed and a new trial awarded.