Poole v. People, 24 Colo. 510

Poole v. People

24 Colo. 510 | Colo. | 1898

Mr. Justice Gabbebt

delivered the opinion of the court.

The first objection to the information urged is, that plaintiff in error is charged with having committed the offense at an impossible date, viz: September, 1897. The information is carelessly drawn, but from the language employed, charging the time when the offense was committed, it is fairly inferable that it was at a date prior to the time when it was filed with the justice, and although it might have been successfully attacked at the proper time, by a motion on account of form, or ambiguity, it is too late to raise that question after trial. 1 Mills’ Ann. Stats, sec. 1433. It is urged that the information does not state that plaintiff in error was a resident of the state. The offense consists of the willful neglect of a husband to provide reasonable support and maintenance for his wife. In charging an offense, it is sufficient to allege the facts constituting it, and is not necessary to aver facts to show affirmatively that the person charged is one who can be prosecuted for such offense. Nonresidents are excepted from the operation of the act; but it is not necessary to negative exceptions; if plaintiff in error was a nonresident of the state, that was a matter of defense.

It is contended that the evidence failed to establish the relationship of husband and wife between plaintiff in error and the prosecuting witness. It appears, conclusively, from a certified copy of the records, that the parties were married *514in due form, at Golden, in this state, the 26, day of August, 1881. At this time, the prosecuting witness was a married woman, although she seems to have then believed she was divorced from her former husband. Plaintiff in error knew of her former marriage, but appears, also, to have believed that she had been divorced; so that, although the marriage contract of August 26, 1881, was a nullity on account of the incapacity of Mrs. Poole to enter into a valid marriage' contract, both were innocent of any willful intention to commit a wrong. March 31, 1882, the former husband procured a divorce from Mrs. Poole. The plaintiff in error admits that he knew of these proceedings ; whether Mrs. Poole did, is not altogether clear. After this knowledge on his part, with the exception of a very brief period, they continued to live together as husband and wife until sometime in 1891. Since that date, they have sustained that relationship, at least a greater portion of the time, down to September 19, 1896. If parties desire marriage, and do what they can to render their union matrimonial, but one of them is under a disability, their cohabitation thus matrimonially meant and continued, after the disability is removed, will, in law, make them husband and wife from the moment that such disability no longer exists. 1 Bishop on Marriage, Divorce and Separation, §§ 970, 979. Or, as otherwise stated by this author, “ To employ words more nicely accurate, and cover a larger ground, the living together of marriageable parties a single day as married, they meaning marriage, and the law requiring only mutual consent, makes them husband and wife.” 1 Bishop on Marriage, Divorce and Separation, § 975.

The facts in this case certainly bring the parties within the doctrine above announced. They attempted, in good faith, to enter into a legal marriage contract by procuring license, and solemnization of marriage in the usual way. After the disability of Mrs. Poole had been removed, they continued to live together as husband and wife, held each other out to the public as sustaining that relation; and although no subsequent marriage ceremony was performed, as *515is usual to evidence contracts of this character, they having originally assumed the marriage relation in good faith, in pursuance of what they believed to be a valid contract of marriage, and having continued that relationship- for a long period after it could have been legally assumed, raises the presumption that thereby they intended and meant marriage, mutually assented to a contract of that character.

The objection to the decree, was, that it was not properly certified under the act of congress, the certificate thereto being signed by a deputy clerk. Whether the attestation of the decree of a court of a sister state is sufficient when signed by a deputy clerk of the court only, it is not necessary to determine. The decree in question purported to find that the parties were, on the 1, day of April, 1882, capable of entering into a marriage contract, and that they were, on the said day, legally married. If not properly attested, the introduction of this decree might have been error on account of its possible influence on the jury in determining the issue of marriage; but the evidence of the plaintiff in error on this subject was, that Mrs. Poole and himself had lived together and recognized each other as husband and wife for a number of years after the inpediment to their legal marriage was removed ; and this admission, coupled with the uncontroverted fact that they had attempted, in good faith, to enter into the marriage relation before that time, conclusively established this relationship, and therefore, the admission of the copy of this decree was not prejudicial error. Regarding this decree, Mrs. Poole testifies that her husband told her he had compared the identical copy which was offered in evidence, with the original, and informed her it was a true copy, and that in discussing the matter further, they agreed to accept it as evidencing their true relation; so, for the purpose of showing the character of this agreement, it was proper for the jury to consider the copy admitted. This, apparently, was the view entertained by the trial court, in ruling upon its admissibility, and subsequently instructing the jury upon the subject.

*516The statute authorizes the acceptance of a bond in lieu of the penalty provided; true, it does not designate that the bond shall be executed in any penalty, or in express terms empower the court to fix the penalty thereof; the bond shall be conditioned for the support of the wife for a specific period, but there can be no objection if the order therefor names the penalty in which it shall be executed, or the sum to be paid at stated intervals for her support. In the absence of specific provisions regarding the terms and conditions of the bond, the court has authority to make such order in relation thereto, as will subserve the purposes for which it is to be given, viz: the support of the wife for the period of six months from and after conviction of the husband for nonsupport.

Plaintiff in error was arraigned and pleaded not guilty before the justice. On appeal the cause came up for trial de novo on the issues made in the court below, and it was not necessary that he be rearraigned, or replead in the appellate court any more than it was necessary for the people to file another information. By arraignment before the justice, he was informed of the nature of the charge. Having there pleaded, the issues were made, and the effect of the appeal was to permit the plaintiff in error a new trial on such issues.

The statute upon which this prosecution is based does not change the law as to the civil liability of the husband to furnish his wife reasonable support; it provides a penalty in case he fails to do so, unless excused by physical incapacity or other good cause; he is not relieved from furnishing such support on account of the financial means of his wife, either by the general law, or the statute, and so the offer of plaintiff in error to prove that the prosecuting witness had means of her own, at a time several months prior to the institution of these proceedings, it not being claimed that such means were obtained from the husband, was wholly immaterial. There is no reversible error, and the judgment is affirmed.

Affirmed.