25 Ga. App. 240 | Ga. Ct. App. | 1920
Concurrence Opinion
concurring specially.
I concur in the judgment of reversal in this case because I think that portion of the demurrer should have been sustained which attacked the indictment on the ground that it did not show where the woman resided at the time the license was issued. It is 'against the law of this State for a minister (or any official authorized to perform the ceremony) to join in matrimony any man or woman without a license as provided by law. Penal Code (1910), §677. It is provided in § 2936 of the Civil Code of 1910 that “ marriage licenses shall be granted by the ordinaries, or their deputies, where the female to be married resides, if resident in this State,
Lead Opinion
1. An indictment under section 677 of the Penal Code of 1910, for performing a marriage ceremony illegally, is fatally defective where it does not charge that the marriage ceremony was performed without a license or publication of barms, as provided by law, or that either of the contracting parties was, within the knowledge of the marrying official, an idiot or lunatic, or subject to some other disability which would render the marriage improper and illegal.
(a) The fact that the license was issued by the' ordinary of a county in which the female did not reside, while improper and contrary to law, would not in itself render the marriage illegal; and therefore the knowledge of this fact by the marrying official would not constitute a violation of section 677 of the Penal Code. A marriage may be legal without any license at all. Clark v. Cassidy, 64 Ga. 663 (4); Dale v. State, 88 Ga. 556 (15 S. E. 287). This being true, it clearly follows that a marriage may he legal although the license was procured in the wrong county.
2. Under the above ruling the court erred in overruling the demurrer to file indictment.
Judgment reversed.
cited: Penal Code (1910), § 677; Civil Code (1910), §§ 2936, 2937, 2938; 64 Ga. 662 (1); 84 Ga. 440; 63 Ga. 533; 114 Ga. 96; 69 Ga. 754; 30 Ga. 173; 130 Ga. 161,168; Park’s Ann. Code, § 4, par. 9, and cit.; 103 Ga. 429; 121 Ga. 412; Civil Code, § 2931.
cited Penal Code (1910), § 677; Civil Code, §§ 2936, 2939.