Opinion
No. 32666.
May 31, 1937.
1. BIGAMY.
The evidence disclosing that man and woman moved from Virginia to Mississippi, where man introduced woman as his wife, that they lived together and were recognized as man and wife for five years, that they introduced a child as their daughter, and that another child was born to them while they stayed in Mississippi, established a common-law marriage, as respects whether man, who subsequently was ceremonially married to another woman, could be convicted of bigamy.
2. BIGAMY.
A bigamy prosecution against man who was ceremonially married in 1936, and who in 1931 moved from Virginia to Mississippi with woman whom he introduced as his wife, could not be sustained, where indictment alleged a marriage between parties in 1925, which could have no reference to common-law marriage contracted in Mississippi, and there was no proof of any marriage, ceremonial or common law, in 1925; proof being required to correspond with indictment when time of former marriage is set up.
APPEAL from circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Chalmers Potter, of Jackson, for appellant.
The indictment in this cause charges "E.P. White, on the sixth day of April, 1925, did marry and have for his wife, Evelyn O. Ewers, etc.," which said allegation is in reference to the alleged first marriage of the appellant. The agreement of counsel shows that the appellant, together with the said Evelyn O. Ewers and one daughter who was living with them, moved to Jackson on May 25, 1931, and that if a marriage ceremony was performed, it was performed in Virginia. The state therefore relied on a ceremonial marriage in Virginia, and in support thereof, over the objection of the appellant, the court permitted the state to show certain facts about the appellant and the said Evelyn O. Ewers living together as man and wife in the state of Mississippi, but did not offer any eye witness to the ceremony supposedly performed and solemnized in Virginia. The state could not have relied on a common law marriage in the state of Virginia because such is not recognized there.
Section 2222, Pollard's Code of Virginia; Offield v. Davis, 100 Va. 250, 40 S.E. 910.
As a matter of necessity, therefore, the state could not have relied on a common law marriage in Virginia constituting the first alleged marriage of the appellant, but must have relied on a marriage performed and solemnized under a license, and since this is the case, the same could not be proved in the manner attempted by the state, but some witness to the ceremony must have been introduced to establish the same.
Henderson v. Cargill, 31 Miss. 367; Graves v. State, 134 Miss. 547, 99 So. 364.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
In the case at bar the defendant represented to the court below that he moved to Jackson, Mississippi, in 1931, with Evelyn Ogden Ewers. That he represented her here as being his wife; that they had a daughter which was born of their union; that they lived together in Jackson as husband and wife for approximately five years and finally, on the 2nd day of June, 1936, entered into a separation agreement, by which agreement he sought to take care of his wife and their daughter and a baby boy, born to them while they were living in the city of Jackson and sustaining the relationship of husband and wife. In other words, there was a holding out in Mississippi of Evelyn Ogden Ewer as his wife and he has, by his agreement in the facts, stated to the trial court and now states to this court that he did hold her out to be his wife within the jurisdiction of the trial court. This, of itself, is sufficient to remove this case from the rule of law applied in the Graves case, on which he relies for his discharge.
A common law marriage is recognized as legal and binding in Mississippi.
Barton v. State, 165 Miss. 355, 143 So. 861.
By reason of the holding out of this woman as his wife in Mississippi, it is unnecessary to go back and show whether or not any ceremonial marriage was ever performed in the state of Virginia, or anywhere else. The facts agreed to by appellant are sufficient to constitute a common law marriage in Mississippi and one which could not be dissolved at the will or whim of either party.
Barton v. State, 165 Miss. 355, 143 So. 861.
The appellant, having admitted two valid marriages under the Mississippi law with nothing to show the dissolution of his first marriage, has, in so many words, plead guilty to the violations of our statute against bigamy and the state submits that there is nothing this court can do but affirm the conviction in this case.
Appellant was convicted in the circuit court of the First judicial district of Hinds county on a charge of bigamy, and from a sentence of three years in the State Penitentiary, he prosecuted this appeal.
In lieu of a transcript of the evidence, an agreed statement of the facts was submitted. This statement shows that the appellant, together with Evelyn Ogden Ewers, moved from Lynchburg, Va., to Jackson, Miss., on May 25, 1931; that in Jackson appellant introduced the said Evelyn Ogden Ewers as his wife, and thereafter they lived together and were recognized as man and wife until June 12, 1936; that when they arrived in Jackson they had one child whom they introduced as their daughter; and that during their residence in Jackson as husband and wife a son was born to them. It was further agreed, and shown by an exhibit to the statement of facts, that on June 2, 1936, the appellant and his purported wife entered into a separation agreement whereby he agreed to pay to Mrs. White and their children the sum of $20 per week for their support and maintenance, which amount the wife agreed to accept without resort to the courts for alimony so long as these weekly payments were promptly made. This agreement recites, in part, as follows: "Whereas Mr. and Mrs. E.P. White have had recently some marital differences and; Whereas Mr. White intends to live apart from them and; Whereas, He desires to comply with the law and with his own wishes, in providing for his two children, support money and for his wife, alimony, out of each of his weekly wage checks. It is, therefore hereby agreed by and between Mr. E.P. White and Mrs. Evelyn Ewers White, his wife, that the said Mr. White hereby agrees to pay $5.00 each week for the support of his oldest child, to-wit, Dorothy White, girl nine years old; and $5.00 per week support money for another child, James White, 18 months old; and $10.00 per week alimony for said wife."
It was further agreed in the statement of facts that if there was a ceremonial marriage between these parties, such ceremony was performed in the state of Virginia, and that the appellant and one Sadie Nordin entered into a ceremonial marriage in the First judicial district of Hinds county, Miss., on July 25, 1936.
The facts as to the relations of the appellant and Evelyn Ogden Ewers within the state of Mississippi, as above outlined, were sufficient to establish a common-law marriage contracted and consummated in this state in the year 1931, but the indictment charged the consummation of a marriage between these parties on April 6, 1925, and it is agreed that if there was a ceremonial marriage between these parties it was performed in the state of Virginia, a state which does not recognize common law marriages.
The allegations in the indictment of a marriage between these parties on April 6, 1925, could have no reference to a common-law marriage contracted in this state, and there was no proof of any marriage, either ceremonial or common law, at the time laid in the indictment. It was perhaps unnecessary to allege the time of a former marriage, a point on which the authorities are divided, yet since the time of the former marriage was set out in the indictment, the proof must correspond with the indictment in that respect. 7 C.J. 1168, Keneval v. State, 107 Tenn. 581, 64 S.W. 897. Consequently, for the indicated variance between the proof and the averments in the indictment, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.