194 Mo. 345 | Mo. | 1906
At the June term, 1905, the grand jury of the city of St. Louis returned an indictment against the defendant, charging him with the violation of section 2169, Revised Statutes 1899. On July 20, 1905, the day prior to the one on which the case was set. for trial, defendant filed a motion to quash the indictment, alleging, among other things, that said section of the statute, upon which the indictment was based, was unconstitutional. The motion to quash was sustained by the trial court, and the State tendered a hill of exceptions which was signed and filed, and an appeal taken by the State.
The indictment is in the following words:
‘ ‘ State of Missouri “City of St. Louis,
“Circuit Court, City of St. Louis, June term, 1905.
“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that James W. Stuart, alias George W. Stewart,-on the fifteenth day of December one thousand nine hundred and three, in the county of Alexander, in the State of Illinois, unlawfully and feloniously did marry and take to wife one Wilmer Jones, and to her, the said Wilmer Jones, then and there was married, without the State of Missouri, he, the said James W. Stuart, alias George W. Stewart, then and there still having a lawful wife living, to-wit, Loney Wells Stuart; and that the said James W. Stuart, alias George W. Stewart, afterwards, to-wit, on the sixteenth day of December, one thousand nine hundred and three, within the State of Missouri, to-wit, in the city of St. Louis aforesaid, and from that day until the eighteenth day of May, one thousand nine hundred and five, unlawfully and feloniously did abide and cohabit with the said Wil
“Rich. M. Johnson,
Assistant Circuit Attorney.
“A true Bill
“F. P. Crunden, Foreman.”
The motion to quash, omitting caption, was as follows:
“Now on this day comes the defendant, by his attorney, and moves the court to quash the indictment herein for the reasons following:
“1. Because the indictment charges no offense under the laws of the State of Missouri.
“2. Because on the face of the indictment this court nor any other court in the State of Missouri has jurisdiction to inquire into nor to try this defendant; it being apparent and charged in the indictment that the alleged bigamous marriage took place in another county and State.
“3. Because the charge contained in the said indictment is indefinite, uncertain and vague, and does not fully apprise defendant of the offense wherewith he is charged.
“4. Because of other reasons and matters apparent upon the face of the record. ’ ’
I. Section 2169, Revised Statutes 1899, is in these words:
‘ ‘ Cohabiting in this State bigamy, when: Every person, having a husband or wife living, who shall marry another person, without this State, in any case where such marriage would be punishable if contracted or solemnized within this State, and shall afterwards cohabit with such person within this State, shall be adjudged guilty of bigamy, and punished in the same man
By reference to the foregoing statement, it will be noted that the indictment in this cause is predicated on a violation of said section, and was quashed on motion by the circuit court of the city of St. Louis. We are not advised upon what ground the indictment was set aside, but the argument in this court on both sides was directed principally to the constitutionality of the section and to that question we will first address ourselves.
With the right of a sovereign State in the protection of the morals of its own citizenship to make crimes committed elsewhere punishable in her own courts, if the guilty offender shall come within her jurisdiction, we are not concerned in this case. The statute is leveled at an offense against public immorality committed in this State, to-wit, the continued cohabitation in this State under a bigamous and criminal marriage contracted without the State, which would be punishable in this State criminally if contracted or solemnized within this State.
By common law it was not punishable to marry a second time during the life of the first consort or to cohabit under such second marriage, though it was a Canonical offense, but as early as 1604 it was made a felony by an act of Parliament in England and Wales.
The prototype of our statutes on the subject of bigamy and bigamous cohabitation is found in the Statute 9 Geo. IV, ch. 31, sec. 22, which provides that “if any person, being married, shall marry any other person during the- life of the former husband or wife, whether the second marriage shall have taken place in England or elsewhere, every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony,” etc. This statute is to all intents substantially re-affirmed in 24 and 25 Victoria, ch. 100, sec. 57. Many of our sister States have followed the statute of 9 Geo. 4th, conforming it to our Ameri
In State v. Steupper, 91 N. W. 912, the Supreme Court of Iowa sustained an indictment which charged the defendant with feloniously cohabiting with a woman in Iowa in 1901, after he had feloniously married her in Nebraska, the said defendant at the time of said marriage, and cohabitation, having.a lawful wife living. The court said: “ It is not the continuation of cohabitation within this State which is important, hut it is the fact that in this State cohabitation continues, which was commenced in another State under the bigamous marriage.”"
It will he observed that the Iowa statute defines as bigamy the same acts which our State denounces as such.
By section 4185 of the Code of 1876 of the State of Alabama, it is provided: “If any person, having a former wife or husband living, marries another, or continues to cohabit with such second husband or wife in this State, he or she must, on conviction, he imprisoned in the penitentiary, or sentenced to hard labor for the county for not less than two nor more than five years.”
/By section 2, chapter 130, Revised Statutes of Massachusetts of 1836, under the title of Polygamy, it is provided: “If any person, who has a former husband or wife living, shall marry another person, or shall continue to cohabit with such second husband or wife, in this State, he or she shall, except in .the cases mentioned in the following section, be deemed guilty of the crime of polygamy, and shall be punished, ’ ’ etc., and in Commonwealth v. Bradley, 56 Mass. 553, an indictment charging that the defendant was married in New Hampshire in 1836, and afterwards in 1846, while that marriage was still subsisting, was married in Connecticut to another woman, and afterwards did cohabit and continue to cohabit with said second wife in Massachusetts, the said former wife still living, was held good and the conviction sustainedTjMany other similar statutes might be cited to show that in various states of our Union cohabitation under a bigamous marriage con tracted without the state, has been denominated and defined as bigamy. At common law the entering into the second marriage while a former one remained undissolved was designated polygamy, but the terms bigamy and polygamy are used to denote the same offense by most modem law-writers, and treated under the same head. The proposition urged by the learned counsel for the defendant is that it was unconstitutional for the General Assembly to define continued cohabitation under a
Conceding that the offense denounced in section '2169, Revised Statutes, would not have constituted bigamy as that term was and is used to designate the offense defined in section 2167, Revised Statutes 1899, .and in various statutes in other states and as stated by authors on criminal law generally, why was it not competent for the General Assembly in the exercise of its plenary power to legislate to make that bigamy which before the enactment of section 2169 was no offense at all in this State? The contention of learned ■counsel, if followed to its logical conclusion, would lead to the nullification of many other statutes in this State. For instance, burglary, at common law, according 'to the accurate Mr. Chitty, was the breaking and enter-, ing the dwelling house of another in the night time with intent to commit a felony whether the felony be actually ■committed or not, and if a statute merely punished one who should commit burglary, doubtless the common-law •essentials of the crime would be held necessary, but there is probably not a State in the Union which has not by its own legislation extended the offense so as to include breaking and entering in the day time, and so as to include breaking and entering shops, warehouses, railroad cars, booths, boats and other premises. So that at this day many acts constitute burglary which at .common law or a few years ago were a different offense or on offense at all. In this State eleven different sections of our Criminal Code (secs. 1880 to 1890) are devoted to defining what acts shall constitute burglary, the larger portion of which did not amount to burglary .at common law. ■ The same may be said of numerous well-defined crimes at common law and it has been and •is now the accepted doctrine of the courts that what acts shall'constitute a crime, is a matter left entirely to the legislative branch of the goverment, subject of course 'to the limitations of the Federal and State constitu
Learned counsel for the defendant relies upon State v. Hartley, 185 Mo. 669, in which section 1825, Laws 1901, p. 128, which provides that, “Every person who shall administer to any pregnant woman any medicine, drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy the foetus or child of such pregnant woman, unless the same shall be necessary to preserve the life of such woman, shall be guilty of manslaughter, in the second degree,” was held inoperative by this court because the statute undertook to establish a degree of homicide where there was in fact no killing or homicide either of the mother or child, and the same view was taken of an almost exactly similar statute by the Supreme Court of Kansas in State v. Young, 55 Kan. 349. We still adhere to the Hartley case, but are of opinion that it does not support defendant’s contention in this case or the judgment of the circuit court. AsjspdYy Mr. Bishop, “Language is the offspring of thejáast, buir its life is in and for the ever opening and progressive future. Its principal mission is to- convey, froní one mind to another, the new thoughts as they arise; for the old is continually dying while the new is being horn. If each word had a single fixed and unchanging meaning and if there were- simply certain established collocations of words, each with its one signification, the powers of language would be very limited, and it could never express a new idea. ’ ’ There is no such confusion of ideas or incongruity in the acts which our Legislature has declared in section 2169 shall constitute bigamy and be punished as such as there was and is in the law which we held inoperative in State v. Hartley, 185 Mo. 669.
The argument of counsel is that the unconstitutionality of section 2169 lies in the fact that it seeks to make cohabitation bigamy, and that it is beyond the power of the- .Legislature to name the acts denounced by the
It does not purport or attempt to punish the void form of a marriage, the prostitution of a solemn ceremony which the law permits only when a legitimate union is formed, which of course is punishable in the State where it occurs, but it does, what the'greater number of the States of the Union have done: it makes the continuation of a cohabitation, begun and commenced under the void and illegal ceremony in another state, in this State, a felony, and names it bigamy, and, of course, punishable under our Constitution in the county in which the offense is committed in this State.
Under the act of 9 George 4th, and under all the statutes of the several States of the United States making bigamy a felony or crime, the second marriage itself, however formal the ceremony, is void. Although the statutes provide that if any person being married shall marry another, it is obvious, as was said by Lord Chief Justice Cockburn in Regina v. Allen, L. R. 1 C. C. R. 367, 12 Cox Cr. C. 193: “When it is said, in construing the statute in question, the same effect must be given to the term ‘marry’ in both parts of the sentence, and that, consequently, as the first marriage must necessarily be a- perfect and binding one, the second must be of equal efficacy, in order to constitute bigamy, it is at once self-evident that the proposition, as thus stated, cannot possibly hold good; for if the first marriage be good, the second, entered into while the first is subsisting, must of necessity be bad. It becomes necessary, therefore, to engraft a qualification on the proposition just stated, and to read the words shall marry, in the latter part of the sentence as meaning shall marry under such circumstances as that the second marriage would be good but for the existence of the first. But
When it is considered that in both eases the relation of the party who has a living husband or wife, and then goes through the form and ceremony of marriage with another person, and afterwards continues cohabitation with such party, is practically the same and an outrage on public decency and morals is perpetrated and a public scandal ensues, it is obvious, we think, that the two offenses are so nearly akin and partake of the same general character, that it was perfectly competent for the law-making power to describe both of them as bigamous, and that in so doing, the Legislature has done no more than it has done in extending the law of burglary to acts which at common law did not constitute burglary, and that there is no such a repugnancy in the nature of things as would justify this court in holding a statute which has been on our statute books since the Revised Statutes of 1855, and which has never before been questioned, as inoperative and void. If the simple word “marry” in the act of Parliament and in all of the statutes in the several states on the subject of bigamy, is susceptible of such diverse meanings in the same section, with what reason can it be said that the statute of this state and of Iowa and other states which designate the- felonious continued cohabitation in pursuance of a bigamous second marriage as bigamy, and the statute of Massachusetts which defines it as polygamy, are inoperative merely because the word bigamy is used to define acts which theretofore had been used only to define the act of going through the form and ceremony of marriage with another person, when in law such marriage was illegal, criminal and void? We are not willing to strike down so salutary a statute on such a flimsy ground.
In State v. Smiley, 98 Mo. 605, the defendant was indicted in Madison county. The indictment charged that the defendant on August 24,1884, at the county of Johnson in this State, married Ruth Grant, he then having a wife living, and that afterwards and prior to the finding of this indictment he.was lawfully apprehended and in custody in Madison county for the felony aforesaid. The indictment was drawn under sections 1533 and 1536, Revised Statutes 1879. Section 1533 of the revision of 1879' was identical with section 2167, Re'vised Statutes 1899, but section 1536 provided that an ‘ ‘ indictment for bigamy as defined in the preceding sections, might be found and proceedings, trial, conviction, judgment and execution thereon had in the county in which such second or subsequent marriage or the cohabitation shall have taken place, or in the county in which the offender may be apprehended.”
Black, J., after reciting sections 1533, 1535 and 1536, said: ‘ ‘ The first marriage is alleged to have been contracted in this State, so that section 1535 (now sec. 2169, R. S. 1899) has no application whatever to the present case. Indeed it is not alleged that defendant cohabited at any time or place with Ruth Grant. The indictment is based on section 1533, and cohabitation is not made an element of the offense therein described. The offense was completed in Johnson county when the second marriage was solemnized. [State v. Fitzgerald, 75 Mo. 572.] - The indictment should have been preferred by the grand jury of Johnson county, unless it can be upheld by force of the last clause of section 1536, namely, ‘or in the county in which the offender may be apprehended. ’ There can be no doubt but the allegations of the indictment are sufficient to bring the case within this clause. This clause has nothing to do with the ele
This case, therefore, is authority only for the proposition that where an indictment for bigamy is based solely upon section 1533, Revised Statutes 1879, now section 2167, Revised Statutes 1899, it must be found in the county where the second or bigamous marriage is solemnized and that so much of section 1536, Revised Statutes 1879, as authorized an indictment and prosecution “in the county in which the offender may be apprehended,” was void. This court expressly excepted section 2169, Revised Statutes 1899, from the scope of its opinion. Of the soundness of that opinion no doubt whatever can be entertained under our Constitution of 1875. To the same effect is State v. McGraw, 87 Mo. 161, which simply decides that an indictment for burglary can only be found in the county where, the burglary was committed.' The other cases cited, to-wit: State v. Cooper, 103 Mo. 266; State v. Hansbrough, 181 Mo. 348; State v. Fitzgerald, 75 Mo. 571; State v. St. John, 94 Mo. App. 229; Adair v. Mette, 156 Mo. 496, have no bearing on the question now under consideration. They relate solely to the quantum and character of proof necessary to establish a valid first marriage in the prosecution of the crime of bigamy. State v. Hatch, 91 Mo. 568, merely holds that the crime of embezzlement can only be prosecuted in the county in which the embezzlement occurs.
The statute ( sec. 2169, R. S. 1899) already quoted, provides that ‘ ‘ every person, having a husband or wife living, who shall marry another person, ibithout this
We hold that it is too clear for doubt that it is and
II. As to the other grounds of the motion to quash, we think they are not well taken. The indictment alleges that at the time of the second marriage in Illinois, the defendant had a lawful wife, to-wit, Loney Wells Stuart, living; it avers the unlawful second marriage. in Illinois and then, as already observed, charges that the defendant did afterwards, to-wit, on the 16th of December, 1903, and from that day until the 18th day of May, Í905, unlawfully and feloniously in the city of St. Louis, within this State, did abide and cohabit with
The circuit court erred in quashing the indictment and the judgment is reversed and the cause remanded for further proceedings.