221 Mich. 164 | Mich. | 1922
(after stating the facts). The case most strongly relied upon by defendant’s counsel, McCombs v. State, 50 Tex. Crim. Rep. 490 (99 S. W. 1017, 9 L. R. A. [N. S.] 1086, 14 Ann. Cas. 72, 123 Am. St. Rep. 855), unquestionably sustains their contention. Halbrook v. State, 34 Ark. 511 (36 Am. Rep. 17), is a similar case. Other cases in other jurisdictions also have a tendency to support their contention. But we are persuaded that the case must be disposed of upon the holdings in this State and the State of New York. In the final analysis the questions to be determined are within rather a narrow compass. They are:
(1) May a prosecution be maintained for bigamy where one of the marriages was a common-law marriage? And,
(2) Does the testimony tend to establish that Florence Weisback-Lewis was the common-law wife of defendant under the law of the State of New York?
Manifestly if there was a common-law marriage in New York valid under the laws of that State, it must be treated as valid by the courts of this State.
This court from the early decisions down has adhered to the well-recognized rule that in bigamy cases there must be proof of actual marriage. But this court did not in the early cases hold that there must be proof of ceremonial marriages in order to sustain a conviction of this crime. When the question was squarely presented in People v. Mendenhall, 119 Mich. 404 (75 Am. St. Rep. 408), this court held that a conviction of bigamy should be affirmed where
“But, whether a marriage is celebrated in facie ecclesiss, or is contracted by the present consent of the parties, it is ■ the consent alone that creates the marital relation; and, if either party is incapable of giving consent, there is no marriage. The statute of bigamy is consistent with the common law, and recognizes any form of marriage, either for the first or second marriage, which would be good at common law; and the inquiry is, whether the marriage alleged was valid, that is, as to the first marriage, whether it was valid as a marriage in fact, and as to the second, whether it would have been valid but for the first, which rendered the accused incapable of contracting.”
It must, we think, be taken as the settled law of this jurisdiction that a prosecution for bigamy is maintainable even though one of the marriages was a common-law marriage, or, as tersely stated by the supreme court of California in People v. Beevers, 99 Cal. 286 (33 Pac. 844):
“The crime of bigamy is committed when a person marries who has another husband or wife living at the time. The mere form of the first marriage is entirely immaterial. The vital inquiry is, is such a person a husband or wife?”
The ceremonial marriage of defendant and Florence Weisback in, the State of New York was void. The impediment to its validity was the fact that he then had a lawful wife living in the person of Alice Hennessey-Lewis. February 7, 1920, that impediment was removed by a' decree of divorce granted to Alice. Thereafter and for a period of over a year and a half defendant and Florence continued to live in the State of New York as husband and wife. He held her out as his wife and she in good faith believed she was his wife and in con
“It seems to me, in view of the decisions and authorities which have been referred to, that the rule ought to be that where one person is free to enter into the matrimonial relation, and does so in good faith, but the other party is incapable of entering into such relation because of a former wife or husband living, or other impediment, when such impediment is removed, if the parties continue matrimonial cohabitation, continue to introduce and recognize each other as husband and wife, and are so recognized by their relatives, friends and by society, it ought to be held that from such moment they are actually husband and wife, and that under such circumstances it is of no importance that a formal agreement to live together as husband and wife was not entered into or that either did not know that the impediment to such an agreement had been removed, when in fact it had been so removed and both parties were competent to enter into the matrimonial state.”
“If the parties desire marriage, and do what they can to render .their union matrimonial, yet one of them is under a disability, as where there is a prior marriage undissolved, their cohabitation, thus matrimonially meant, will, in matter of law, make them husband and wife from the_ moment when the disability is removed; and it is immaterial whether they knew of its existence or its removal, or not, nor is this a question of evidence. This doctrine is overlooked in some of the cases, but it is abundantly sustained by others, and the reasoning on which it rests is conclusive. Here are the mutual present consent, to which not even written or spoken words are necessary, and consummation, which is useful in the proofs, but is not necessary, — more, therefore, than the law requires.”
In Re Fitzgibbons’ Estate, 162 Mich. 416 (139 Am. St. Rep. 570), this court divided evenly on the question of whether we should adopt this rule, but both opinions agreed that it had been adopted in New York. The trial court was, therefore, not in error in submitting to the jury the question of whether Florence Weisback-Lewis was the lawful wife of defendant when he married Edith Molter and afterwards lived with her in Berrien county.
Defendant’s counsel also insist that there was a fatal variance between the information and the proofs in this that the information charged the marriage of defendant to Florence Weisback to have been on the
The conviction will be affirmed.