Opinion
(December Term, 1844.)
A marriage between a colored and a white person, contracted in 1842, was void by force of the statute passed in 1830. Though this latter statute was repealed by the Revised Statute, passed in 1836, ch. 1, sec. 2, repealing all previous statutes, yet that statute provided that such repeal should not affect rights or actions, crimes, or prosecutions arising before the repeal.
APPEAL from RUTHERFORD, Spring Term, 1842; Bailey, J.
Attorney-General for the State.
No counsel for defendants.
The defendants were tried in May, 1842, on an indictment for adultery; and their defense was that they were man and wife. The jury found a special verdict that the defendant Hooper is a free man of color, and the defendant Suttles, a white woman, and that they intermarried with each other in this State about ten years before that time, and had, from the time of their said marriage up to the time of the indictment found, lived together and cohabited as man and wife in the county of Rutherford; and the jury referred to the court to determine whether the marriage was valid or void — in the former case finding the defendants not guilty, and in the latter finding them guilty. The court held that as the marriage was before the act of 1838, ch. 24, which prohibits marriages between colored and white persons, the marriage between these parties was not unlawful, and, therefore, gave judgment for the defendants, from which the solicitor for the State appealed to the Supreme Court.
His Honor overlooked the previous statute of 1830, ch. 4, which makes it unlawful for a free negro to marry a white person and declares the marriage void. The oversight probably arose from the circumstances that the act of 1830 was not reenacted among the (202) Revised Statutes of 1836. Its omission induced and rendered necessary the act of 1838 to the same effect, as by Revised Statute, ch. 1, sec. 2, all prior statutes were repealed. But the same act declares such repeal should not affect rights or actions, crimes or prosecutions arising before the repeal; and, therefore, the marriage between these persons which was celebrated while the act of 1830 was in force is void. We say the marriage took place while that act was in force because the act went into operation on 3 February, 1831, and the trial was in May, 1842, and the verdict finds the marriage to have been "about ten years before trial"; that is to say, in May, 1842, being a year and three months after the act was in force. There ought, therefore, to have been judgment for the State on the special verdict.
PER CURIAM. Reversed.
(203)