87 Neb. 189 | Neb. | 1910
Tlie defendants were informed against by the county attorney of Otoe county for tlie crime of fornication. There was a trial to the court without a jury upon a stipulation of facts. Tlie court found the defendants not guilty, and ordered that they be discharged. Thereupon the county attorney, by leave of court, under the provisions of section 483 of the criminal code, filed his petition in error in this court, alleging that the finding and judgment of the court beloAv “in acquitting and discharging the said defendants was contrary to law.” From the stipulation of facts it appears that the defendants are within the class prohibited by the laws of this state from entering into the, marriage relation; that on November 23, 1892, while both defendants were residents of this state, they went into the state 'of Iowa to celebrate their marriage for the express
To hold otherwise would be to render void numberless marriages and to make illegitimate thousands of children the country over. In 1 Bishop, Marriage, Divorce and Separation, sec. 882, this thought seems to have been in the mind of the author. He says: “It was formerly common for English parties, wishing to intermarry without a compliance with their own marriage acts, to go into Scotland and there interchange the matrimonial consent simply in the presence of witnesses. Gre.iua Green was the most convenient point for the required hasty visit; and thus Gretna Green marriages became famous, and there was no question of their validity. Bui parliament, in 1856, by 19 and 20 Victoria, ch. 96, sec. 1, put an end to this by declaring that thereafter ‘no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony shall be valid unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for 21 days next preceding such marriage.’ ” We do not question the power of a state to pass a law similar to that passed by Massachusetts, as hereinbefore set out, but our legislature has not seen fit to do so. On the contrary, section 5316 Ann. St. 1907, provides: “All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state.” See Gibson v. Gibson, 24 Neb. 394; Bailey v. State, 36 Neb. 808; Hills v. State, 61 Neb. 589.
While the decisions upon this point are not unifoim and authorities can be found opposed to those above cited,
Overruled.