Cooley v. The State

Cooley v. The State. Indictment for Bigamy. 1. _ Proof of mairiarje by bill for divorce.—A bill in equity for a divorce, nob verified by the oath of the complainant, is, like any other unsworn bill, regarded as tbe mere suggestion of counsel; and is not competent evidence against the complainant therein, in a subsequent prosecution for bigamy, to prove his marriage with the defendant as therein alleged. 2. Validity of infant's marriage.—A marriage, contracted by an infant under the age of consent—seventeen years if a male, and fourteen if a female— (Ilev. Code, § 2333), is not absolutely void, but voidable only; and, until disaffirmed, is a marriage in fact, and sufficient to support a prosecution for bigamy in contracting a second marriage. ErtoK tbe Circuit Court of Eandolpb. Tried before tbe Hon. John Hendebson. Tbe indictment in this case, which was found in February, 1877, and contained but a single count, charged that tbe defendant, Jobn B, Cooley, “ having a wife then living, unlawfully married one Melissa Cooley.” On tbe trial, as tbe bill of exceptions shows, tbe defendant having pleaded not guilty, “ tbe State introduced one Muncus as a witness, who testified, that on tbe 15th day of October, three or four years ago (be could not recollect which), be was present, aM saw tbe defendant married to one Susannah Bradley ; also, that be saw tbe defendant hold up bis band before Dr. Cantrell, and swear that be was twenty-one years old; also, that the defendant lived about a week with tbe woman be saw him marry.” Tbe State then introduced as evidence a bill in chancery filed by tbe said defendant on tbe 28th day of August, 1876, for a divorce from tbe said Susannah on tbe ground of adultery; which was offered in evidence, “ as a confession, by tbe said defendant that be bad married tbe said Susannah, and bad lived with hex about three weeks, and to show that said defendant was over twenty-one years of age when said bill was filed.” Tbe defendant objected to the admission of said bill as evidence, “on tbe ground -that, not being sworn to, it was tbe mere suggestion of counsel, and therefore not competent evidence in tbis case.” Tbe court overruled tbe objection, and admitted tbe evidence; and tbe defendant excepted. Tbe defendant’s second marriage was admitted. On the part of tbe defense it was proved, by tbe entries in tbe family Bible of tbe defendant’s father, that be was born on tbe 17th day of November, 1856; and that, with tbe exception of one week between tbe 15th October and tbe 17th November, 1873, be ate and slept at bis father’s bouse, and did not cohabit with tbe said Susannah ; while tbe State proved, in rebuttal, by tbe mother of tbe said Susannah, that tbe defendant and tbe said Susannah “ lived together at her bouse about two weeks after tbe 17th November, 1873.” _ _ “This being all tbe evidence necessary for a proper understanding of the questions reserved, tbe court charged tbe jury, that if they believed, from tbe evidence, that tbe defendant married tbe first time before be was seventeen years of age, be might have treated tbe marriage as a nullity at any time before be was seventeen years of age ; but, if be cohabited and lived with her after be arrived at tbe age of seventeen, this would be a ratification of tbe marriage, and be would be guilty as charged in tbe indictment.” Tbe defendant excepted to this charge, and requested tbe court, in writing, to instruct tbe jury as follows : 1. “ If tbe jury believe, from tbe evidence, that tbe defendant was under seventeen years of age when be married Susannah Bradley, be is not guilty, and tbe jury must acquit him.” 2. “ If tbe defendant was under seventeen years of age at tbe time of said first marriage, then said marriage was void, and incapable of ratification.” 2. “ If tbe defendant was under seventeen years of age at tbe time of bis first marriage, then be could not ratify said marriage until be arrived at tbe age of twenty-one years.” 4. “ To constitute a ratification of a contract, tbe party alleged to have ratified it must be shown bv evidence to have done so willingly and understandingly.” Tbe court refused each of these charges, and tbe defendant excepted to their refusal. Smith & Smith, for tbe defendant. — Tbe statute law of this State declares, that males under seventeen, and females under fourteen years old, “ are incapable of contracting marriage.’ — ’Bev. Code, § 2333. This statute changes tbe rule of the common law, which allowed experimental marriages by infants, and renders marriages contracted by parties under tbe prescribed age, not voidable merely, but absolutely void, and incapable of ratification. — Cooley’s Blackstone, vol. 1. 435, 433 ; Gathings v. Williams, 5 Ired. 487 ; Story on Agency, § 240 ; 47 Ala. 143. But, whether such marriage be void or •voidable, it could not be ratified until after tbe party bad arrived at tbe age of consent. — Bisbop on Marriage and Divorce, § § 59, 194,196. Jm W. A. SaNfobd, Attorney-General, for tbe State, cited tbe case of Beggs v. The Stale, at tbe present term. [MAJORITY — STONE, J. —] STONE, J. — Bills in equity, not verified by tbe complainant, are regarded as tbe suggestions of counsel, and are not evidence of any fact alleged in tbem, between tbe same, or other parties, in another suit. — Stetson v. Goldsmith, 30 Ala. 602, 606-607; 1 Brick. Digest, 829, § 353. Tbe Circuit Court erred, in allowing tbe bill in chancery, filed by defendant for divorce, to be read in evidence. In tbe case of Beggs v. The State, at tbe present term, there is a full discussion of tbe question, whether tbe marriage of a person within the age of consent is void or voidable, "We held, that such marriage was only voidable; and that “ until disaffirmance, it is a marriage in fact, and tbe second marriage of either party is bigamy/’ Tbe rulings of tbe Circuit Court in tbe matter of the charges given and refused, as shown by this record, are in accordance with tbe principles declared in Beggs v. The State, and are free from error. For tbe single error above pointed out, tbe judgment of tbe Circuit Court is reversed, and tbe cause remanded. Let tbe prisoner remain in custody, until discharged by due course of law.