Opinion
No. 33380.
November 7, 1938.
1. BIGAMY.
In order to establish crime of bigamy, the state must allege and prove that the spouse of the first marriage was living when the second marriage was celebrated.
2. BIGAMY.
In bigamy prosecution, the death of the former spouse, if she died prior to the time of the alleged second marriage, was not an affirmative defense; proof that the former spouse was alive being a vital part of the corpus delicti.
3. BIGAMY. Criminal law.
In bigamy prosecution, the presumption of innocence at least neutralizes if it does not overcome the presumption of the continuance of the life of the accused's first wife arising from fact that she was alive shortly prior to the second marriage, and, in the absence of other competent evidence of probative value to aid the presumption that the former spouse is still living, the accused is entitled to directed verdict.
4. BIGAMY.
In bigamy prosecution, evidence that, after accused's marriage to second wife, accused's first wife's friend, who was unfamiliar with the first wife's handwriting or signature, received a postal card containing references to certain matters indicating that the first wife might have written it, together with presumption that the first wife lived because of fact that she was alive a short time before accused's marriage to second wife, was insufficient proof of fact that first wife lived at time of the marriage to the second wife, necessary to sustain conviction of bigamy.
APPEAL from the circuit court of Hinds county; HON. JULIAN P. ALEXANDER, Judge.
Chalmers Potter, of Jackson, for appellant.
The defendant was entitled to a directed verdict, and we most respectfully insist that the court erred in failing to grant an instruction directing the jury to find him not guilty because (a) there was no evidence whatsoever to prove a valid marriage between defendant and Evelyn White, and (b) because there was no proof whatsoever in the record that the woman Evelyn White was alive at the time of the marriage between defendant and the said Sadie Nordin.
The evidence was insufficient to establish the fact that the defendant and Evelyn White were man and wife.
Graves v. State, 99 So. 364; 38 C.J. 1328; Thompson v. Clay, 82 So. 1, 120 Miss. 190; Howard v. Kelly, 71 So. 391, 111 Miss. 285; 10 C.J. Sec. 373; Floyd v. Calvert, 53 Miss. 37.
It is well recognized in Mississippi that in actions of bigamy the fact of marriage cannot be established by the acts and declarations of the parties, by proof of general repute in the family, or by acts and declarations of deceased parties who were related to them by blood or marriage.
Henderson v. Cargill, 31 Miss. 367; Pigford v. Ladner, 142 Miss. 345, 104 So. 568; Graves v. State, 99 So. 364; Green v. State, 21 Fla. 403, 58 Am. Rep. 670.
There was no proof in the record that Evelyn White was alive at the time the second ceremony was contracted.
It is necessary (for the State) to allege and prove that the spouse of the first marriage was living when the second marriage was contracted in order to constitute bigamy.
Bryant v. State, 176 So. 590.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
This is the second appearance of this case in this court. At this trial the facts were, in substance, the same as those shown on the former appeal, such facts having been set out in detail in the opinion of the court in that case. White v. State, 178 Miss. 650, 174 So. 562. The court said on this former appeal that those facts were sufficient to show the consummation of a valid common law marriage in Mississippi.
This court has said that the state must allege and prove that the first wife was alive at the time of the second marriage.
Bryant v. State, 179 Miss. 739, 176 So. 590.
The subject of presumptions in connection with proof that a person is alive or dead at a given time has given rise to a good deal of confusion, particularly since the rule has different applications in civil and criminal cases. In the early case of Spears v. Burton, 31 Miss. 547, it was said by way of dicta that the presumption of life within 5 years (7 years now) is not sufficient to establish the illegality of a second marriage within the specified time, because that would be to establish a crime by mere presumption of law. However, to illustrate the confusion, we have only to refer to 2 Whar. Cr. Law, 12th Edition, Sections 2065 to 2067, inclusive, and 7 Am. Jur., Bigamy, Sec. 41, page 77, and the annotation appearing as Section 2 of 34 A.L.R. 487. It is well enough to call the attention of the court, however, to the fact that this latter annotation deals with civil cases. The case of Fuquay v. State, (Ala.) 114 So. 898, 56 A.L.R. 1264, deals somewhat with the question before the court, together with the annotation immediately following it. It will be noted that with reference to the particular question there involved the Mississippi case of Bennett v. State, 100 Miss. 684, 56 So. 777, is cited as being controlling.
In the case at bar the facts show that the first Mrs. White (Evelyn) was alive on June 2, 1936. This is shown by her signature to the separation agreement between her and the appellant, in which appellant agreed to pay a certain part of his weekly earnings for the support of this wife and their children. The records shows that appellant married Sadie Nordin on July 21, 1936, some seven weeks after the separation agreement was executed by him and his wife. Mrs. Watts testified, when the case was tried in June, 1938, that three or four months after Mrs. White left Mississippi and went to Lynchburg, Virginia, she received a letter from "Evelyn" in which she stated that her children were there with her and gave directions for the disposition of certain articles of property that had not been disposed of when she and her husband had separated. Both Mrs. Watts and her husband testified that neither of them was familiar with her handwriting and could not swear that the letter was written by Mrs. White, but from the things that were mentioned, they could not believe otherwise.
All of this evidence being construed together, we submit that there is no other inference that can be drawn except that Mrs. White was living, certainly at the time that appellant contracted his second marriage, on July 21, 1936. And we say this is sufficient, even though the court should hold that the state was bound to prove that the former wife was living prior to the expiration of the seven years mentioned in the bigamy statute.
This appeal is from a conviction of the crime of bigamy. The appellant requested a peremptory instruction in the court below on two grounds: (1) That the evidence on behalf of the State was insufficient to establish beyond a reasonable doubt the existence of a valid former marriage, either ceremonial or at common law. (2) That the State failed to prove that the former spouse was alive at the time when the alleged bigamous marriage was celebrated. As will hereinafter appear, it is only necessary that we notice the second ground assigned.
It was shown that the appellant and Mrs. Evelyn White, together with their little girl, moved from Lynchburg, Virginia, during the year 1931, to Jackson, Mississippi, where their second child was later born, and where they continued to live together as husband and wife until on or about the 2nd day of June, 1936, when she and the two children are said to have returned to Lynchburg, Virginia. At the time of their separation, a written agreement was executed in which provision was made for the support and separate maintenance of the wife and children. This agreement, signed by both of the parties, was introduced in evidence by the State, and it was therefore shown that the said Mrs. Evelyn White was alive on the said second day of June, 1936. The only proof offered to show that she was still alive on July 21, 1936, when the appellant was married to Sadie L. Nordin, was that one of her friends in Jackson received a letter and later a postal card from Lynchburg, Virginia, supposedly written by her and signed "Evelyn." The person who received these communications was wholly unfamiliar with the handwriting or the signature, and the only proof as to the author was the fact that the letter contained references to certain matters indicating who may have written the same. We do not think that the fact of these communications having been received is sufficient under the circumstances to prove that the said Mrs. Evelyn Ogden White was still alive. The court held in the case of Bryant v. State, 179 Miss. 739, 176 So. 590, that it was necessary for the State to both allege and prove that the spouse of the first marriage was living when the second marriage was celebrated in order to establish the crime of bigamy. This rule is almost universal.
Aside from the circumstance of the receipt of the letter and postal card referred to, the conviction of the appellant must rest alone upon the presumption of the continuance of life which arises from the fact that the former wife was alive shortly prior to the second marriage. As opposed to this presumption, there stands the presumption of the innocence of the accused. The death of the former spouse, if she had died prior to the time of the second marriage, unlike the fact that a divorce may have been obtained by a defendant before the celebration of his subsequent marriage, is not an affirmative defense. Proof that she still lives is an essential element of the crime charged. It is a vital part of the corpus delicti. To presume in a criminal prosecution for bigamy that a former spouse is still living at the time of a defendant's second marriage is to presume the existence of a material fact necessary to be proven as a part of the State's case in chief. While there is some conflict, as well as confusion, among the decisions of the courts and the views of the text writers in regard to the extent to which the presumption of a continuance of life may be availed of by the State to establish the charge that at the time of a defendant's second marriage he was then legally married to another who was still living, we are of the opinion that the better view is that the presumption of innocence at least neutralizes, if it does not overcome, such a presumption of life; and that in the absence of other competent evidence of probative value to aid the presumption that the former spouse is still living there is no case for submission to the jury. The fact that the former spouse is living must not depend upon presumption merely, but must be established by proof; for the presumption of innocence supplemented by the presumption of the validity of the second marriage must prevail over the presumption that the former spouse is still living. While recognizing the presumption of continuance of life, we hold that when this presumption is met and neutralized by the presumption of innocence in a criminal case, the issue of fact is then left open to proof, and in the absence of other evidence, aside from the presumption of the continuance of life, the defendant is entitled to a directed verdict. Christian v. State, 174 Ark. 357, 295 S.W. 368; People v. Feilen, 58 Cal. 218, 41 Am. Rep. 258; Squire v. State, 46 Ind. 459; Dixon v. People, 18 Mich. 84; Dunlap v. State, 126 Tenn. 415, 150 S.W. 86, 41 L.R.A. (N.S.) 1061, Ann. Cas. 1913E, 264.
It was held in the case of Bennett v. State, 100 Miss. 684, 56 So. 777, that the State was not required to prove that a divorce had not been obtained by the defendant from his former wife who was still living at the time of the second marriage, for the reason that this fact was an affirmative defense coming within the exceptions enumerated under Sections 1052 of the Mississippi Code of 1906, which is the same as Section 796 of the Code of 1930. In other words, it was held that the State was not required to prove a negative. However, the opinion in the Bennett case recognizes the principle that when the proof omitted pertains to an essential element of the corpus delicti a different rule is applicable. Commonwealth v. McKie, 1 Gray, Mass., 61, 61 Am. Dec. 410; Ake v. State, 6 Tex. App. 398[ 6 Tex.Crim. 398], 32 Am. Rep. 586.
The State having thus failed to prove such a vital and constituent element of the corpus delicti, it necessarily follows that the appellant was entitled to the peremptory instruction asked for.
Reversed and judgment here for appellant.