104 Cal. 631 | Cal. | 1894
Appellant was found guilty of the seduction of Rosa Hunzeker under promise of marriage, and was sentenced to pay a fine of five hundred dollars. He now appeals from said judgment, and an order denying his motion for a new trial.
Appellant contends, that, at the time of the commission of the alleged offense, he and Rosa were husband and wife; and whether such relation existed is the sole question made upon this appeal.
The defendant, a man forty-three years of age, lived near Lemoore, in Tulare county. In August, 1893, he
Defendant bought a steamer ticket for a stateroom from San Francisco to Stockton, purporting to be for himself and wife, and upon the boat introduced her as his wife, she being silent and making no remonstrance.
Upon the witness-stand Rosa denied that she saw the steamer tickets, but admitted that on the way to the boat defendant said he had two rooms, “ one for those people, and one for us.” She further testified that defendant said on the boat that they would marry on Tuesday; that she did not want to go to the room, and wept, and that defendant said she should not be so foolish, there were but two days more.
Upon cross-examination she said in reply to leading questions that they occupied the stateroom as man and wife, and were so registered at the hotel in Stockton, and there occupied the same room, and was introduced as Mrs. Lehmann, and upon the boat and at the hotel had sexual intercourse with defendant.
The testimony of Mrs. Skelly, with whom Rosa lived up to the day she went to Stockton, is explicit as to the intended marriage at Lemoore, and that defendant did
There is not a scintilla of evidence of any agreement or understanding that they should become husband and wife before the designated day, or before their arrival at Lemoore, nor without the usual solemnization, unless it is found in the introduction by defendant of Rosa as his wife, and their occupying the same room upon the boat and at the hotel, and the admitted copulation. The defendant left Rosa at Stockton without explanation, and, so far as the record discloses, did not again see her until the trial of this case.
Section 55 of our Civil Code is as follows: “ Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must he followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations.”
What constitutes a “mutual assumption of marital rights, duties, or obligations” has been so fully discussed and repeatedly declared by this court, that a brief reference to some of these cases is all that is either necessary or profitable now.
In Sharon v. Sharon, 75 Cal. 9, it was said that “the contract out of which the marriage relation arises must be a contract then and there to become husband and wife.” But in this case there was no such contract, unless the copulation and the introduction may be held to be sufficient to show such contract to have been made. In Kilburn v. Kilburn, 89 Cal. 50, 23 Am. St. Rep. 447, it was said: “The mutual agreement of the parties to live together in the professed relation of husband and wife is essential to create a contract of marriage, and the contract, therefore, imposes upon the
Here there was no cohabitation. The parties were in transit from San Francisco to Lemoore. Passengers using a boat for a short trip as a means of conveyance, or transient guests at a hotel during a short journey, are n.ot habitants of the boat or hotel. It is true that registering upon the boat and at the hotel as husband and wife, introductions as such, and occupying the same room, is evidence tending to show that such relation existed; but, taken alone, is wholly insufficient to establish the existence of so sacred and important a relation which so directly concerns the public morals. Such conduct, though natural and proper where the parties are in fact married, is for that very reason often resorted to for the concealment of relations purely meretricious. Indeed, if such conduct were held conclusive proof of marriage, the number of persons who could be legally convicted of bigamy would be alarmingly increased.
In this case neither the prosecutrix nor the defendant claimed nor asserted that there was a marriage, or that the relation of husband and wife ever existed between them, by any act or word done or uttered after the defendant left the prosecutrix at the hotel in Stockton. There is no conflict in. the evidence, and the question is, therefore, one of law, whether the facts developed by the evidence constituted a marriage, or
The judgment and order appealed from should be affirmed.
For the reason given in the foregoing opinion the judgment and order appealed from are affirmed.