89 W. Va. 96 | W. Va. | 1921
Marion L. Snyder and Amanda Belle Cross duly entered into the marital relation in Barbour County, this State, in the year 1910 and thereafter until 1920 remained husband and wife, when at the suit of the husband the Circuit Court of that county at the 1920 September term granted him a
“Neither party to a divorce suit shall again marry within six months from the date of a decree of divorce; but this provision shall not apply to, or prohibit the divorced parties from being remarried to each other at any time. The court may further prohibit the guilty party from marrying within a certain tinie, to be fixed in the decree, not to exceed five years from the date of the decree; and any marriage contracted by the parties, or either of them, except a remarriage by the divorced parties to each other, within the prohibited period, shall be void, and the party shall be criminally liable the same as if no divorce had been granted. The court may, at any time after the expiration of one year, modify the restraint imposed upon the guilty party, upon it being shown that such person, by reason of his or her life and conduct, since the date of the decree, is entitled to such relief.”
To the indictment and each of its two counts defendant demurred and moved to quash it. Each challenge to its sufficiency having been over-ruled, the Court certified here its action thereon for review. The first point considered is the omission of an averment of cohabitation in this state by the parties to the subsequent marriage, a relation prohibited by the decree until after the expiration of five years unless the restraint be removed in the manner provided by the statute. There is in the section no hint of the necessity for such an averment. It is against the solemnization of the marriage, the uniting of a divorced husband or wife whose conduct made necessary and expedient recourse to the suit for. relief, that the statute inveighs. So considered, the offense is complete when the prohibited ceremony is performed. Cohabitation is not an element of the criminal act when com
The right and duty of the legislature to provide just and reasonable regulations for marriage and divorce is imperative for the sake of morality and decency as matters of public concern and for the safety of those more immediately affected. No institution has a more direct influence or a more important relation in life than marriage. Civilization in large measure depends upon it and governments are solicitous .to preserve and safeguard its sanctity. They have also taken the utmost precaution to prescribe the causes and regulate the manner for the annulment of marriages. From an early period the English Parliament reserved to itself the right not merely to prescribe the causes warranting divorce from the bonds of matrimony but to grant the annulment of marriages for such causes, as did also the legislative assemblies of the American Colonies prior to the Revolution. Now the judiciary of the several states may grant divorces, subject, however, to such regulatory enactments as the state legislatures may deem necessary or expedient for the protection of the public and the parties interested. It was for this purpose that section 14 became a part of the laws of this state. Its provision's are not unusual or extraordinary.
Illinois, Nansas and Virginia have similar laws. Some of them authorize the inhibition of the marriage of the party whose disloyalty to the marriage vows warrants the dissolution of the marriage alliance during the lifetime of the party not so at fault, unless the provision in the decree is modified subsequently upon the application of the party so prohibited. These statutes the highest courts of the states named have upheld as valid and enforceable against the transgressor though with some relaxation where the rights of the innocent issues of the marriage were involved or the marriage was solemnized in a state other than the one that enacted the statute. See Olsen v. People, 219 Ill. 400; Hobbs
In Musick v. Musick, 88 Va. 12, the Supreme Court of Virginia held valid an act conferring upon the courts of the state authority to prohibit the marriage of the guilty party at any time while the decree remained in full force and effect. In all such legislation provisions appear for the relaxation or modification of the inhibition upon the application of the party restrained supported by proof sufficient to show reformation on his or her part, as does section 14 of chapter 64 Code 1918.
The main, if not the most serious objection to the indictment is the character of the charge against the accused. For her the argument is that according to- section 2 of chapter 149 of the Code she can not be proceeded against as for a bigamous marriage entered into after the date of the divorce decree, and that she can be prosecuted, if at all, for no offense other than a misdemeanor. That section considered alone does tend to support her contention. But does not section 14 of chapter 64 repeal, at least by implication, section 2 of chapter 149 ? The first two sections of that chapter appear with slight alterations in language in the Code of 1860 and subsequent Codes, especially since 1882. If the law in this state is as she contends, the marriage between her and Harvey is not bigamous, or perhaps more properly, not polygamous. Section 2 of chapter 149 is an old statute; section 14 of chapter 73, Acts 1915, now section 14 of chapter 64 of the Code, a much later one and contains the usual repealing clause. They deal with the same subject, the effect to be given to section 1 of chapter 149 when the party indicted is a divorcee. The first or older section exonerates her from criminal liability, the later one in effect repeals the other and fixes liability upon her. They treat of the effect of a divorce. Their provisions are repugnant, each to the other, and their inconsistency is too palpable to admit of their coexistence as the law applicable to the facts averred in the indictment. If they can not stand together, one must fall. In such case'the later law must prevail as the last expression
There seems to be no valid objection to the second count, at least as urged in argument. Our opinion then is to approve the rulings upon the demurrer and motion to quash and to certify the result of our investigation to the Circuit Court of Barbour County.
jReversed; Demurrer overrule4.