| S.C. | Mar 3, 1879
The opinion of the Court was delivered by
The defendant was convicted upon an indictment for bigamy, alleging that “he feloniously did marry one Charity Collins, the said Betsy Moore, his former wife, being then alive.” To establish the offense, it was necessary to prove that defendant had been previously married to Betsy Moore. To resist this, conclusive proof was offered to show that previous to the alleged marriage with Betsy Moore the defendant was lawfully married to a woman by the name of Pleasants. It was in evidence that such marriage with Pleasants was celebrated in form while the parties were both slaves and with the consent of their respective masters. The Circuit Judge charged “that the marriage between defendant and Pleasants whilst slaves, however formally celebrated in facice ecelesice, was legally invalid, and that mere cohabitation after emancipation would not, without proof on their part of the marital relation, validate the prior invalid marriage.” This charge is clearly inconsistent with the recent decision of this Court in Davenport vs. Caldwell, (10 S. C., p—.) The fact that at the date of the passage of the Act of 1865 (13 Stat., 290,) the defendant and Pleasants were living together as man and wife under a marriage solemnized while they were slaves, if established to the satisfaction of the jury, brought the case within the second Section of that Act. — Davenport vs. Caldwell. There was evidence that the defendant and Pleasants continued to live as man and wife after emancipation for a year or eighteen months. If the jury concluded from this testimony that they so lived for that length of time after the general emancipation of slaves, then they should have found the existence of a marriage. The charge precludes such a finding and was, therefore, erroneous. It is unnecessary to consider the question of the validity of the marriage with Pleasants independently
The third charge was as follows: “ But assuming Pleasants to have been his legal wife, if after her death defendant acknowledged the second marriage to Betsy and recognized her as his legal wife, that this at common law would constitute such marriage as would make the third marriage to Charity bigamous.” Was this a proper direction to the jury ? The law does not make the marriage contract, but it is altogether the act of the parties, the law merely declaring its consequences. The question is one of understanding and intent, having reference to a particular time when such intent was consummated by cohabitation. If the parties are legally competent to enter the marriage relation, then the law effectuates such consummated understanding and intent. If the parties are incompetent to contract marriage together, as when either is under the age of legal consent, or previously married, having a lawful husband or wife living, the marriage is invalid and cohabitation resulting therefrom illicit. Cohabitation having its origin in an illicit compact is presumed to continue in that charactér'until changed by the lawful understanding and consent of the parties into the relation of marriage. The conduct of parties, such as their declarations and actual cohabitation, may be proved as evidence to infer the existence of the marriage contract. It is erroneous to say that such declarations, accompanied by cohabitation, make the contract; they are merely circumstances entitled- to weight with all other circumstances properly bearing on the question, such weight to be admitted with due regard to the legal presumptions affecting the question. This part of the charge may readily have been construed as meaning that if after the death of Pleasants the defendant acknowledged the fact of having been married to Betsy Moore during the lifetime of Pleasants, that such an acknowledgment was entitled to be received as evidence of marriage. Such an inference would clearly be erroneous, as that marriage, assuming its original illegality, could not become the source of the legal relation of marriage through
The judgment must be set aside and a new trial granted.