King v. State , 40 Ga. 244 ( 1869 )

McCay, J.

There was a demurrer to the indictment in this case, because it did not allege the first marriage to be a lawful marriage, and because it failed to allege that at the time of the second marriage, his said lawful wife was, within his knowledge, in life.

1. A necessary ingredient of the crime of bigamy is that at the time of the second marriage the defendant shall have a lawful wife living. If the first marriage were, for. any cause, void, or if the defendant has been divorced a vinculo matrimonii, the second marriage is not bigamy. As this is a material fact, and expressly included by the statute in' the description of the crime, we think it ought to be alleged. This very case shows the propriety of it. The whole case turns upon whether certain proven facts constitute a legal marriage, or rather, cast upon the defendant, by operation of law, a marriage, a lawful marriage, when the indictment simply charges that on a certain day he married one Nancy Moreland. We think the demurrer to the indictment good. Every "fact stated therein may be true, and the defendant may be not guilty, simply because the first marriage may not have been lawful.

2. It was argued that the Act of 1866, declaring persons of color man and wife, who were living together as such at the date of the Act, does not cast upon such persons a marriage so as to malee them Hable to indictment for contracting, subsequently, another marriage. Without doubt the case of colored people is peculiar. Until June, 1865, they were in fact slaves, they could make no legal contracts of any kind, and there would be gross injustice in a law declaring all marriage contracts made while they were slaves, valid. But when the Act of March, 1866, was passed, they had been free in fact eight or nine months, and by the strict rules of law had been during that period free and able to contract. Why were not their- contracts of marriage made during that time valid as well as other contracts which they might make ? It is true, that under the peculiar circumstances surrounding them, a moralist will not judge them harshly, and it is perhaps a wise public policy not to inflict upon them severe penalties for failing, as in most instances they did, to comprehend the sacredness of the marriage tie.

It will be noticed that the Act of March, 1866, does not specifically refer to actual marriages of colored people, but declares that all who, at the date of that Act, were living together as man and wife shall be so considered. There were, doubtless, may instances, and it is honorable to the colored people to declare it, of persons who, without any law of man to enforce it, had been true to the vows they had made to each other to be man and wife when slaves, and when the boon of freedom came they still adhered to the relations they, had formed. To such persons a mere formal contract of marriage was not only unnecessary, but degrading, and it was an act of justice and wisdom in the Legislature to provide a law settling any doubts there might be of the legality of such relations. But there Avere -also a large number of cases among slaves Avhere the marriage tie Avas very loose. It had not the sanction of law; and circumstances, inevitable in in their character, made it liable to many interruptions, and when freedom Avas cast suddenly upon the race, it is not strange that for some time both men and women should cohabit under circumstances where it Avas very doubtful what Avas the true relation which they proposed to occupy to each other. They might be man and wife, they might be living together immorally. Under the circumstances it is unfair to hold them criminally liable for acts in violation of the implied contract thus apparently existing. The Act of 1866 was passed to cure the evils we have referred to, and after much reflection upon the evils it was intended to remedy, upon the words of the Act, and the principles of criminal law, our judgment is that this Act confirms and legalizes, for all civil purposes, the marriages of persons of color living together at the date of that Act. But if, on the publication of that Act, such persons should immediately have ceased to live together as man and wife, we do not think it would be bigamy in one of them to contract a subsequent marriage. If they, however, continue, after the passage of that Act, to to live together, so as to raise an implied assent to the contract thus cast upon them, it will be bigamy to marry a third. The essence of the crime of bigamy is the marrying of a third person’- by one who has a lawful wife living. ' After accepting, by continuing to live together, the terms of the Act of 1866, the marriage is complete for all purposes, and it is criminal to contract another. What kind of living together, and how long, must depend upon the facts of each case.

Assuming, as we must, that everybody knows the law, the question must turn upon the conduct of the parties. Is it such as fairly leads to the conclusion that they bona fido recognize each other as man and wife? If they have continued to do so after the passage of this Act, it will be criminal to marry again.

Judgment reversed.