14 W. Va. 834 | W. Va. | 1878
delivered the opinion of the Court :
The evidence, on which the jury in this case based their verdict of guilty, was sufficient to justify such verdict.
The defense, which the prisoner sought to establish by the evidence which the court rejected, was, that he had on the 30th day of April, 1873, in Union county, Ohio, been lawfully married according to the laws ot
The indictment alleging the offense of the prisoner to be the marrying by the prisoner on May 5, 1877, in Iowa to Clara Allen, while his wife Francis I. Smith was living, it was incumbent on the State to show, that Francis I. Smith 'was his lawful wife, and the prisoner’s defense sought to be established by the evidence rejected by the court was, that Francis I. 'Smith was never the lawful wife of the prisoner, as he was a married man, when he married her.
If the first marriage laid in the indictment was a nullity, then the second marriage laid in the indictment could not constitute the offense of bigamy ; and if the prisoner was a married man, when the first marriage charged in the indictment took place, this marriage was an absolute nullity in Wisconsin, where it was solemnized, the common law being in force there. See East P. C. 466; Lady Madison’s Case, 1 H. P. C. 693.
It is true, that this defense, sought to be set up by the prisoner, establishes beyond controversy, that he was guilty, of bigamy, when on November 29, 1874, he married Francis I. Smith in Wisconsin, his first wife,
The first proposition to be proven in order to make out the proposed defense was, that prior to the prisoner’s marrying Francis I. Smith in Wisconsin, on November 29, 1874, he had lawfully married some other woman. And the second proposition to be proven was, that this first wife was living on November 29, 1874. The firsf proposition the prisoner proposed to prove by a copy from the records of marriages in Union county, Ohio, and
By our Code, see ch. 130, §20, p. 618, “all records and 'exemplifications of office books kept in any public office of a’State shall be evidence in any court in this State, if attested by the keeper of said records or books, and the seal of his office annexed,” &c. The probate judge, as we have seen by the laws of Ohio, is the keeper of the record, or books, in which the law of Ohio requires certificates of marriage to be recorded; and the attorney for the[State waived all objection to the form of the certificates. This certificate by the keeper of the record book in which it was recorded by the laws of Ohio, would have been receivable as evidence of this marriage b)r the common law, independent of our statute. See Milford v. Worcester, 7 Mass. 48. This certificate tends to prove the marriage of the prisoner with Sarah Snodgrass, on April 30, 1873 ; and it is authenticated by the signature and seal of office of the person who by the laws of Ohio is the keeper of such record books; and I can see no reason why it should not have been permitted to go in evidence to the jury. If so received, it would have established in the absence of contradictory evidence the marriage according to the laws of Ohio of the prisoner and Sarah Snodgrass on April 30, 1873.
It is insisted, however, by the Attorney General that
It is true, if the prisoner had been indicted in Wisconsin for marrying Fannie I. Smith while his first wife, Sarah Snodgrass, was living, the law would have justified the jury in presuming the prisoner’s innocence, and therefore fhat his first wife, Sarah, had died before the 29th of November, 1874, when he married his second wife. So that in such case the presumption of innocence would be in conflict with the presumption of the continuance of life, which would have arisen from proving that Sarah Snodgrass was living April 30,1873, the time of her marriage as shown by the record. The law in such a case makes no absolute decision between the conflicting presumptions of innocence and life. The presumption of innocence, that is that the first wife was dead, has generally prevailed, but not always. These presumptions of innocence and life in such eases are regarded as presumptions of fact, to be considered and weighed by the jury, and not presumptions of law. See Lopsley v. Greerson, 1 House of Lords Cases, 498; Sneed
Id the case of Reg v. Lumley, L. R. 1 C. C. 196-198, cited in 1 Bishop on Marriage and Divorce, § 454, Lush, judge, said : “If, for example, it were proved that she was in good health the day preceding the second marriage, the inference would be strong, almost irresistible, that she was living on the latter day; and the jury would in all probability find that she was so living. If on the other hand it was. proven that she was then in a dying condition, and nothing further was proven, they would probably decline to draw that inference. Thus the question is entirely for the jury. The law makes no presumption either way.”
If thei’efore this had been an indictment for bigamy against the prisoner for marrying Francis I. Smith in "Wisconsin November 29,1874, while his first wife, Sarah Snodgrass, was living, the court would have let the evidence that Sarah Snodgrass was living on-April 30, 1873, go to the jury for their consideration, though no other evidence had been offered on the question whether she was living or dead at the-time of the second marriage. The jury would probably in such a case have found that she was dead at that time. But the court ought to have submitted it to their consideration as a question of fact.
It seems much more obvious that on the trial of an indictment, as in the case before us, on the charge that the prisoner married Clara Allen in Iowa on May 30, 1877, his wife, Fannie I. Smith, being then alive, it was proper to permit evidence to go to the jury that a former wife, Sarah Snodgrass, was living on April 30, 1873. For the prisoner being presumed to have been innocent in marrying Clara Allen would give rise to the presumption that his marriage to Fannie I. Smith was void, that is to the presumption that Sarah Snodgrass was living on November 29, 1874, when he married Fannié J. Smith. Thus two presumptions - of innocence would arise, the one from his marrying Fannie I. Smith, that
The case of Gorman v. The State, 23 Texas, 646, 648, 649, is an illustration of how the presumption of innocence leading to the conclusion that the first wife was dead may be destroyed by another presumption. In this case,' it being proven that the husband believed his first wife was living when he married his second wife, the court held that this belief, whether founded on knowledge or not, showed the willingness of the accused to violate the law, and therefore took away from him the opposing presumption of innocence.
In the case before us the prisoner’s willingness to violate the law is clearly shown, and therefore the presumption that he was not violating the law when he married Fannie I. Smith is taken away, and being so taken away it seems to me that there will remain the original presumption that Sarah Snodgrass was living on November 29, 1874.,.arising from the fact that it was proven she was living on May- 30, 1873; but, be this as it may, it is clear that this evidence ought to have been allowed by the court to be submitted to the jury.
Our next enquiry is: Did the circuit coui’t err in refusing to permit to go to the jury the copy of the divorce
By the laws of Ohio the court of common pleas of Union couniy is a court of general jurisdiction, (Swan & Critchfieldhs Statutes, 386, 1196,) and may grant divorces (Swan & Critchficld’s Statutes, 509); and among the causes for -which such court may grant a divorce a vinculo matrimonii are adultery and gross neglect of duty. See Revised Statutes of Ohio (Curwin) vol. 3, p. 2168. The decree, a copy of which was offered in evidence, on its face showed that the court had jurisdiction of the subject-matter and also of the parties, for it recites that the plaintiff, Sarah C. Goodrich, appeared by her attorneys, and that due notice had been given the defendant, Francis Goodrich, and further that the evidence proved that he had been guilty of gross neglect of duty and of adultery. It is true it does not affirmatively appear positively where this neglect of duty and adulter-y took place for which this decree of divorce was rendered. It was decided by the Supreme Court of Appeals of the United States in Cheever v. Wilson, 9 Wall. 124, that the validity of a decree of divorce is in no manner affected by the fact that the marriage took place in another State, and the adultery or other cause of divorce also took place there, and the husband never resided in the State ■where the divorce was granted, it being sufficient that the wife, who seeks the divorce, has subsequently to the marriage and to' the 'adultery of her husband, removed
This decision cannot in my judgment be regarded as sound to the full extent to which it goes; and it is inconsistent with the decisions of several highly respecta'ble State courts. Thus in Borden v. Fitch, 15 Johns. 141, where a man was married in Connecticut, and his wife obtained a divorce from him a mensa etthoro to continue during her pleasure, she continued to reside in Connecticut, but her husband moved to Vermont, and there obtained a divorce a vinculo matrimonii without any personal service of notice on her. The Supreme Court of New York held this decree of divorce was a nullity. A similar decision was rendered in the case of The Commonwealth v. Blood, 97 Mass. 538.
The true position is, I think, that a State court, Avhere the parties married and resided, and one of them continues to reside there, though one of them deserts the other and removes to another State, may grant a divorce, though the grounds of the divorce, such as adultery, may have occurred outside of the State. If, however, after the marriage both parties move to another State, and one of them then there commits adultery, and after-wards the other again removes to the State where the parties were married, in such case it is doubtful whether a divoi’ce could be granted by the courts of the State in which the parties were married. See Prosser v. Warner 47 Ver. 467, 19 American R. p. 132.
Regarding this as law, the court of common pleas of Ohio appears to have had jurisdiction to grant the divorce. The parties were married in that county and must be presumed to have resided there, and the wife to have continued to reside there, as that court, which is one of record and of general jurisdiction, tuok cognizance of the suit of the wife for a divorce. The husband had notice of the pendency of this suit; and though it is shown that he subsequently removed to Wisconsin, yet this would not deprive the courts of Ohio of juris
It may be sometimes necessary, where a judgment or decree is the foundation of a suit, to produce a copy of the whole record or of the bill and answer to show clearly the meaning .of the decree and that the court had jurisdiction of the subject-matter and of the parties; but when a judgment or decree is introduced merely to show that judgment or decree was rendered, as a collateral fact in some suit not based on such judgment or. decree, it is only necessary to produce a copy of the judgment or decree and no other part of the record, provided it appears in any manner that the court rendering it had jurisdiction of the subject-matter and parties, that is, provided it is really what it purports to be, a judgment
The judgment therefore of the circuit court, of June 10, 1878, must be reversed, set aside and annulled ; and this Court proceeding to render such judgment as the circuit court ought to have rendered doth set aside the verdict of the jury in this case, and doth remand the case to the circuit court of Harrison county, with directions to proceed in the manner prescribed by law to cause another jury duly qualified to come and to say whether the said Theodore F. Goodrich be guilty of the felony wherewith he stands accused, or not guilty, and further to proceed according to the principles settled in this written opinion as the law requires.
Judgment Reversed. Cause Remanded.