State v. Lynch
272 S.E.2d 349
N.C.
1980
Check Treatment
HUSKINS, Justice.

The question we address upon this appeal is whether the evidence of the crime of bigamy is sufficient to withstand defendant’s motion'for nonsuit. We hold the evidence insufficient to go to the jury, and defendant’s motion for nonsuit should have been granted.

Upon a motion for nonsuit in a criminal action, all of the evidence favorable to the State, whether competent or incompetent, must be considered. Such evidence must be taken as true and considered in the light most favorable to the State. Discrepancies and contradictions are disregarded, and the State is entitled to every inference of fact which may reasonably be deduced therefrom. State v. Witherspoon, 293 N.C. 321, 237 S.E. 2d 822 (1977).The test is the same whether the evidence is circumstantial, direct or both. State v. McKnight, 279 N.C. 148, 181 S.E. 2d 415 (1971). If the evidence is sufficient only to raise a suspicion or conjecture, the motion for nonsuit should be allowed. “This is true even though the *485 suspicion so aroused by the evidence is strong.” State v. Cutler, 271 N.C. 379, 383, 156 S.E. 2d 679, 682 (1967).

Bigamy is a statutory crime in all fifty states. See Slovenko, The De Facto Decriminalization of Bigamy, 17 J. of Fam. L. 297, 307-08 (1979) (Appendix contains a list of bigamy statutes). Bigamy was not an offense at common law. It was an offense against society punishable under ecclesiastical law. State v. Burns, 90 N.C. 707 (1884); 4 W. Blackstone, Commentaries * 163; but see, State v. Williams, 220 N.C. 445, 17 S.E. 2d 769 (1941), rev’d on other grounds, Williams v. North Carolina, 317 U.S. 287, 87 L.Ed. 279, 63 S.Ct. 208 (1942). It was made a statutory offense in the reign of James I. 2 James I, c.11 (1604). This English statute was the prototype for the first North Carolina bigamy statute of 1790.1790 N.C. Sess. Laws c.ll.

Our bigamy statute is presently codified at G.S. 14-183 and reads as follows:

If any person, being married, shall marry any other person during the life of the former husband or wife, every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of a felony, and shall be imprisoned in the State’s prison or county jail for any term not less than four months nor more than ten years. Any such offense may be dealt with, tried, determined and punished in the county where the offender shall be apprehended, or be in custody, as if the offense had been actually committed in that county. If any person, being married, shall contract a marriage with any other person outside of this State, which marriage would be punishable as bigamous if contracted within this State, he shall be guilty of a felony and shall be punished as in cases of bigamy. Nothing contained in this section shall extend to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to have been living within that time; nor to any person who at the time of such second marriage shall have been lawfully divorced from the bond of the first marriage; nor to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.

*486 A person commits bigamy when being lawfully married he purports to marry another person.

The issue raised in the nonsuit question is whether defendant contracted a marriage to Mary Alice Bovender while lawfully married to Sandra Lynch. This case turns upon whether the marriage to Sandra Lynch was a valid marriage under the laws of this State.

The existence of a valid prior marriage must be proved beyond a reasonable doubt by the State. The question of its validity must be determined by the law of the state in which the ceremony was performed. If the prior marriage was void, the second marriage was not bigamous. 2 Wharton’s Criminal Law § 236 (14 ed. 1979).

Marriage is an institution controlled by the individual states Jones v. Bradley, 590 F.2d 294, 296 (9th Cir. 1979); see also Boddie v. Connecticut, 401 U.S. 371, 28 L.Ed.2d 113, 91 S.Ct. 780 (1971). “There are three parties to a marriage contract — the husband, the wife and the State.” Ritchie v. White, 225 N.C. 450, 453, 35 S.E.2d 414, 415 (1945).

Marriage, or the relation of husband and wife, is in law complete when parties, able to contract and willing to contract, actually have contracted to be man and wife in the forms and with the solemnities required by law. It is marriage — it is this contract, which gives to each right or power over the body of the other, and renders a consequent cohabitation lawful. And it is the abuse of this formal and solemn contract, by entering into it a second time when a former husband or wife is yet living, which the law forbids because of its outrage upon public decency, its violation of the public economy, as well as its tendency to cheat one into a surrender of the person under the appearance of right. A man takes a wife lawfully when the contract is lawfully made. He takes a wife unlawfully when the contract is unlawfully made; and this unlawful contract the law punishes.

State v. Patterson, 24 N.C. 346, 355-56 (1842). To constitute a valid marriage in this State, the requirements of G.S. 51-1 must be met. That statute provides:

The consent of a male and. female person who may lawfully marry, presently to take each other as husband and *487 wife, freely, seriously and plainly expressed by each in the presence of the other, and in the presence of an ordained minister of any religious denomination, minister authorized by his church, or of a magistrate, and the consequent declaration by such minister or officer that such persons are husband and wife, shall be a valid and sufficient marriage: Provided, that the rite of marriage among the Society of Friends, according to a form and custom peculiar to themselves, shall not be interfered with by the provisions of this Chapter: Provided further, that marriages solemnized and witnessed by a local spiritual assembly of the Baha’is, according to the usage of their religious community, shall be valid; provided further, marriages solemnized before March 9, 1909, by ministers of the gospel licensed, but not ordained, are validated from their consummation.

A common law marriage or marriage by consent is not recognized in this State. State v. Alford, 298 N.C. 465, 259 S.E.2d 242 (1979); State v. Samuel, 19 N.C. 177 (1836). Consent is just one of the essential elements of a marriage. The marriage must be acknowledged in the manner and before some person prescribed in G.S. 51-1. State v. Wilson, 121 N.C. 650, 28 S.E. 416 (1897). In order to have a valid marriage in this State, the parties must express their solemn intent to marry in the presence of (1) “an ordained minister of any religious denomination,” or (2) a “minister authorized by his church” or (3) a “magistrate.”

In this case, the State is required to establish beyond a reasonable doubt that Chester A. Wilson was an ordained minister of a religious denomination or a minister authorized by his church. Though the marriage license is competent evidence tending to prove a marriage, State v. Melton, 120 N.C. 591, 26 S.E. 933 (1897), the absence or presence of a marriage license is of minimal consequence in establishing a valid marriage to support a bigamy prosecution. State v. Robbins, 28 N.C. 23 (1845); see also G.S. 51-6 to -21. The subjective intent of defendant to indeed marry the person alleged to be his first wife is also of minimal consequence. Bigamy is an offense even though unwittingly committed. State v. Goulden, 134 N.C. 743, 47 S.E. 450 (1904). The admission of defendant that he was previously married is competent evidence tending to establish the marriage. State v. Goulden, supra; State v. Melton, supra; State v. Wylde, 110 N.C. 500, 15 S.E. 5 (1892). The marriage defendant *488 admitted he entered into or intended and the marriage which is at least licensed by the State or which is apparent by reputation in the community must, however, comply with G.S. 51-1. We conclude the State has failed to meet this burden and the motion for nonsuit consequently should have been allowed.

It is not within the power of the State to declare what is or is not a religious body or who is or is not a religious leader within the body. State v. Bray, 35 N.C. 289 (1852). In Bray, a bigamy case which brought into question the validity of the first marriage, Chief Justice Ruffin addressed the wording of the North Carolina marriage statute:

The statute, without assuming to pronounce dogmatically who were true ministers of the gospel, meant to give a catholic rule, by admitting everyone to be so, to this purpose, who, in the view of his own church, hath the cure of souls by the ministry of the Word, and any of the sacraments of God, according to its ecclesiastical polity, implying spiritual authority to receive or deny and desiring to be partakers thereof, and to administer admonition or discipline, as he may deem the same to be the soul’s health of the person and the promotion of godliness among the people. When to such a ministry is annexed, according to the canons, or statutes of the particular church, the faculty of performing the office of solemnizing matrimony, the qualification of the minister is sufficient, within the statute.

35 N.C. at 295-96. Whether defendant is married in the eyes of God, of himself or of any ecclesiastical body is not our concern. Our concern is whether the marriage is one the State recognizes. “[A] marriage pretendedly celebrated before a person not authorized would be a nullity.” State v. Wilson, 121 N.C. 650, 656-57, 28 S.E. 416, 418 (1897). A ceremony solemnized by a Roman Catholic layman in the mail order business who bought for $10.00 a mail order certificate giving him “credentials of minister” in the Universal Life Church, Inc. — whatever that is — is not a ceremony of marriage to be recognized for purposes of a bigamy prosecution in the State of North Carolina. The evidence does not establish — rather, it negates the fact — that Chester A. Wilson was authorized under the laws of this State to perform a marriage ceremony.

The State has failed to prove a prior marriage within the *489 meaning of G.S. 51-1. The second marriage was therefore not bigamous. Defendant’s motion for nonsuit should have been granted. The decision of the Court of Appeals is

Reversed.

Justice BROCK took no part in the consideration or decision of this case.