Summary
In Daughdrill v. Daughdrill, 180 Miss. 589, 178 So. 106 (1938), we pointed out that "the" penitentiary does not mean just any penitentiary or "a" penitentiary, but means the Mississippi Penitentiary.
Summary of this case from State Muirhead v. State Bd. of Elec. Com'rsOpinion
No. 32831.
January 17, 1938.
DIVORCE.
The statute authorizing granting of divorce in case offending party had been sentenced to the penitentiary referred only to penitentiary of state of Mississippi, and husband's sentence to federal penitentiary in another state did not entitle wife to divorce (Code 1930, section 1414).
APPEAL from chancery court of Forrest county. HON. BEN STEVENS, Chancellor.
Lester Clark, of Hattiesburg, for appellant.
The Supreme Court of Mississippi has never passed upon the question of whether or not Section 1414 of the Mississippi Code of 1930, Cause No. 3, which states, "Being sentenced to the penitentiary and not pardoned before being sent there," applies only to a conviction in this state and sentenced to the Mississippi State Penitentiary, or whether or not the statute applies to a conviction and sentence to any penitentiary.
In Section 140 of Amis' Divorce and Separation in Mississippi, the position is taken that it does not mean a penitentiary or any penitentiary, but only the penitentiary of this state, and this authority cites 19 C.J., page 43, par. 78, and 9 R.C.L., page 320, sec. 96. 19 C.J., page 43, par. 78, states, "Conviction Out of State: Unless otherwise expressed in the statute conviction and imprisonment without the state is not a cause for divorce."
The Supreme Court of the State of Massachusetts in the case of Leonard v. Leonard, 6 L.R.A. 632, held that "A sentence to imprisonment in the state prison of a foreign state is not a ground of divorce within the statute providing that a divorce may be decreed when either party has been sentenced to confinement in the state penitentiary." It will be noted, however, that this Massachusetts statute specifically stated "The state prison." The construction of this statute is very definite and specific in that it states a state prison, while our Mississippi statute uses the term, "the penitentiary."
Had the Mississippi Legislature intended that being convicted and sentenced to the penitentiary and not pardoned before being sent there meant only the Mississippi State Penitentiary, then why did it not word the statute to read the Mississippi Penitentiary or the state penitentiary?
It appears that several chancellors in Mississippi at present construe the Mississippi statute to mean any penitentiary, and grant divorces when it is proven that the defendant has been convicted and sentenced to another state penitentiary or a federal penitentiary, and not pardoned before being sent there. Certainly, if our statute stated that state penitentiary or the state prison, it would definitely be limited to offenses and convictions in this jurisdiction only.
We submit that the wording of the Mississippi statute could well be construed and should be construed to mean any penitentiary or a penitentiary. In the case at bar, the appellant suffered all the injuries that she would have suffered had her husband been sent to the Mississippi State Penitentiary. She suffered the loss of his support, the loss of his association, fellowship, protection, etc. Then, too, she suffered the humiliation of becoming the wife of a convict. For the above reason and perhaps other, the Mississippi Legislature enacted a law making, "Being convicted and sentenced to the penitentiary and not pardoned before being sent there," a ground for divorce.
The appellant, Mrs. Sadie Rainey Daughdrill, filed a bill for divorce against her husband, Leroy Daughdrill, in Forrest county. The bill charged that appellee was "tried in the Federal Court at Mobile, Alabama, in September, 1936, for stealing said automobile, and was convicted and sentenced to the United States Penitentiary at Atlanta, Georgia, for a term of two and one-half (2 1/2) years; that he is now serving said sentence and was not pardoned before being sent there." The appellee filed no answer to the bill. The court below heard the evidence offered by the appellant, denied the divorce, and dismissed the bill.
The finding of the court is a sufficient statement of the facts. It found that the appellee "was convicted of a felony and that he is now incarcerated in the Federal Penitentiary, Atlanta, Georgia, for the commission of a felony, and that the complainant is entitled to a divorce from the defendant on the cause of being sentenced to the penitentiary and not pardoned before being sent there, provided that the language `being sentenced to the penitentiary, and not pardoned before being sent there' applies to a Federal Penitentiary and not only to the penitentiary of the State of Mississippi." The court further found that it had jurisdiction of the cause in all respects.
It is the precise contention of the appellant that the court below erroneously construed section 1414, Code of 1930, the applicable part of which is as follows: "Divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the eleven following causes, viz.: . . . Third. Being sentenced to the penitentiary, and not pardoned before being sent there." It will be noted that the language of the statute is "being sentenced to the penitentiary." In 19 C.J., p. 43, section 78, it is stated that "unless otherwise expressed in the statute, conviction and imprisonment without the state is not a cause for divorce." To like effect is 9 R.C.L., p. 320, section 96. Also see Amis on Divorce and Separation, section 140. That writer says, referring to this language: "Clearly that does not mean a penitentiary, or any penitentiary, but only the penitentiary of this state."
We are persuaded that by analogy the reasoning and authorities in the case of State ex rel. Mitchell, Attorney General, v. McDonald, 164 Miss. 405, 145 So. 508, 86 A.L.R. 290, are pertinent here. In that case we held, construing sections 241 and 250 of the Constitution of 1890, that only convictions of crime committed under jurisdiction of this state disqualified one from holding office. We do not think that the Legislature intended to make incarceration in a penitentiary in another state or country a ground for divorce. The Legislature did not intend to recognize as felonies those offenses which might be established as such by another state or country. The safe, sound construction of this statute is that it means that the offending party in divorce suits must have been sent to the penitentiary of the state of Mississippi and not to the penitentiary of another state or country.
Affirmed.