Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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the former being alive, for the marriage to C. living B. was simply
void, and so he was not her husband ; but if B. had been living,
this had been felony to marry D. in England ; ruled at Newgate
sessions, abont 1648, in the Lady Madisoii case."

Mr. Greenleaf, after stating the points that the State is re-



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20 ARKANSAS,



Halbrook v. State.



quired to prove, as above, adds: '' The defense may be made by dis-
proving either of the points above stated. Thus, where a woman
married a second husband abroad, in the life-time of the first, and
afterward the first died, and then she married a third in England,
in the life-time of the second, and for this third marriage she was
indicted; upon proof that the first husband was living when the
second marriage was had, it was held a good defense to the indict-
ment; the second marriage being a nullity, and the third therefore
valid. '^ 3 Oreenl. Ev., § 208, citing Lady MadiaotCs case ; StaU v.
Goodrich, 14 W. Va. 834, is similar to the case now before us.

So in this case, if appellant wttsarried to Margaret Halbrook
in Tennessee, and she was living when he married Jane Honeycutt,
the latter marriage was null and void; and if Margaret Halbrook
had obtained a divorce from him before he married Mary Mahan,
this third marriage was valid, and not bigamous, as alleged in the
indictment ; but the marriage with Jane Honeycutt was bigamous.

Appellant, however, could not be convicted on this indictment
for the bigamous marriage with Jane Honeycutt, because that is
not the offense with which he is charged.

(c) Did the court err m excluding all the evidence offered by ap-
pellant, as incompetent and irrelevant ?

In indictments for bigamy, proof of marriage is required to be
more strict than in civil cases.

But it is reasonable to hold that appellant should have been al«
lowed to introduce any evidence conducing to prove his marriage
with Margaret Halbrook, relied upon by him to defeat the case
made by the State, which the State might have permitted to intro-
duce to prove the same marriage, had the indictment alleged it to
be the first marriage, and a subsequent marriage to be the bigamous
marriage.

It is established by the current of adjudications, that in prosecu-
tions for bigamy, the deliberate admission of the defendant that a
woman was his wife, and evidence that he cohabited with, treated
and held her out to the community as such, may go to the jury for
what they are worth, as tending to prove an actual marriage. Reg.
V. Simmons, 1 Carr. & Kir. (N. P.)164, 47 Eng. C. L. 164; Com. v.
Jackson, 11 Bush, 679; s. Co, 21 Am. Eep. 225, in which the English
and Amencan cases are reviewed. Warner v. Com., 2 Va. Gas. 96;
Cameron v. Stale, 14 Ala. 546; Cook v. State, 11 Ga. 54; State v.



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NOVEMBER TERM, 1879. 21

Halbrook v. State.

Briiien, 4 McCord, 255; Wolvmton v. State, 16 Ohio, 173; Cay-
forcTs case, 7 Greenl. 57; Slate v. Uodgskimy 19 Me. 158.

lu New York, where it has been held that an actual marriage
must be proved, and that the prisoner cannot be convicted on mere
:i«I missions, or evidence of cohabitation {Peo2)le v. Humphrey, 7
Johns. 314), yet m Galiagan v. People, 1 Park. Cr. 380, such admis-
sions and proof of cohabitation as husband and wife were held to
\>c admissible as tending, witli other facts, to prove an actual mar-
riage

In this case, appellant offered to prove, by two witnesses, a re-
puted marriage with Margaret Halbrook in Tennessee; that they
cohabited as husband and wife there, and later in this State, and in
Missouri for many years, and reared a family of children. This co-
habitation occurred before there could have been any object on the
piirt of appellant to make evidence to be used in this prosecution.

Presumption of marriage arises from cohabitation as husband
and wife.

There was also a presumption that appellant's marriage with
Jane Honeycutt was lawful, innocent and not criminal. It is sup-
posed that a man will not incur the guilt of felony and danger
which attends it by marrying another woman during the life of one
to whom he has previously been lawfully married. 2 Wliart. Ev.,
§ 1297 , Jones v. Jones, 48 Md. 391; s. c, 30 Am. Rep. 466.

Had appellant's evidence of cohabitation been admitted, it would
have been the province of the jury, under proper directions from the
court, to weigh the presumptions in making up their verdict.

{d) But the court also excluded the transcript of the record of
the Missouri divorce decree.

With some evidence aliunde of identity of parties, this decree
would have proven that on the twenty-eighth day of November,
1866, about twenty-six days after appellant's marriage [with Jane
Honeycutt, and before he married Mary^Mahan, Margaret Halbrook
obtained a divorce from him.

The decree would also have proved that Margaret Halbrook wag
living at the time appellant married Jane Honeycutt, because she
obtained the decree, and was awarded by it care of her infant chil-
dren after that marriage The decree was also evidence that a
marriage had been contracted between the complainant and defend-
ant in that suit, because courts do not grant divoroes without
proof of marriage.



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22 ARKANSAS,



Halbrook ▼. State.



Marriage is the foundation of the wliole proceed ings, and the de-
cree or sentence granting a divorce, in form and effect, affirms the
marriage as well as declares the separation. Bish. Mar. and Div.,
§315.

The decree would also have conduced to prove that appellant^s
marriage with Margaret Halbrook occurred fc>efore his marriage
with Jane Honeycutt, but about twenty-six days having transpired
between the dates of the latter marriage and the time of the de-
cree, which was obtained on publication. These twenty-six days
were i^eriods of appellant's honeymoon with Jane Honeycutt, a
yoiing woman whom, according to the theory of his defense, be it
said to his shame, he deceived and deluded into an illegal marriage,
and niado her in law an adulteress. But a man indicted for one
crime cannot be convicted on proof that he has committed another.

After offering the decree in evidence, appellant offered no evi-
dence of identity of parties, but the decree having been excluded*
this WQuld have been useless.

The evidence of cohabitation should have gone to the jury for
what It was worth, and the decree should have been admitted.

The jmlgmcnt must be reversed, and the cause remanded for
further proceedings.

If the indictment was in fact presented in court by the grand
jury, it may be shown by a nunc pro tunc entry when appellant is
in court, and he may be tried again on the same indictment
Otherwise he may be held to answer a new indictment if the State
elects further to prosecute him. Green v. SlatCy 19 Ark. 178; HaU
comb V. Slate, 31 id. 427.

Judgment reversed and cause retnanded,

NoTK BY THK REPORTER. — In Statc V. Ooodrich^ U W. Va. 834, the indictment charged
that defendant in November, 1874, married Fannie Smith, in Wisconsin, and while so roar
ried. in May, 1877, married Clara Allen, in West Virgrinia. The court said:

*• The evidence on whicli the jury m this ca«« baiied their verdict of guilty was sufficient
lo justify sucli verdict. It is true the fir.-«i marriage charged in the indictmeut was proved
by tlie minister wlioofflciaved at the marriage, and the second marriage charged in the
mdictmeiit was only proved by the distinct admission of the prisoner: and that the
authorities elsewhere are contiiciing on tht- question whether such pix>of is sufficient in an
indictment for bigamy, or whether it i< even admissible: but It Is settled in Vli^inla and
in this State that such evidence is admissible in such a case and sufficient to Justify a con-
viction. See Warner v. CommmiinpaUk, 2 Va. Cas. 95: O'NeaVs case, 17 Gratt 582; Bird'*
case. 21 id sno.* A new trial ought not therefore to have been awarded the prisoner,
unless the court had excluded from the jury evidence which ought to have been admitted.

••The defense which the prisoner sought to establish by the evidence which the court

*To same effect, WUlia7na v. Stale, 54 Ala. 181 ; s. c., 25 Am Bep. (MS&.



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NOVEMBER TERM, 1879. £3

Halbrook v. State.

rejected was (bat b«» tiad on the 80th day of April. 1873. In Union county* Ohio, bean law-
fully married according to the lawn of Ohio to Sarah Snodgrass, and that she waa itill
liTtog and this marriage in full force, woen he was married on the S9th day of J>lovemtier,
1871 to Francis L Smith* in Wiacousin ; that he, the prisoner, being then a married man*
(hia marriage lo Frandfc i Smith was a mere nullity, and absolutely void ab initio,

^ The indictment alleging the offense of the prisoner to be the marrying by the prisoner
on May 5 1677 in Iowa, lo Clara Allen, while his Wife Francis I. Smith was living. It was
Incumbeui on the Suie lo show that Francis I. Smith was his lawful wife, and the pris-
oner's defense sought to Ue establishe'l by the evidence lejected by the oourt was that
Francis I. Sniitli was never the lawful wife of the prisoner, as he was a married man when
lie married her

' if tlie first niarriagH laid in the indicuuent was a nullity, then the second marriage
laid In the indictment could not constitute the offense of bigamy, and If the prisoner was
a married iiiau when the first marriage charged in the indictment took place, this mar-
riago was nti absolute nullity in Wisconsin, where It was solemnized, the common law
bem;? in force there. See East s P. C. 406 ; Lady Maditon't case, 1 H. P. C. 608.

'^' It is true that this defense sought to be set up by the prisoner establishes beyond eon-
iroventy that he was guilty of bigamy, when on November S9, 1874. he married Francis I.
Smith in Wi^onsiu, his first wife, Sarah Snodgrass, being then living. His entering into
this contract of marriage, which is forbidden by the law, while his former wife was living.
Is what constitutes the offense of bigamy : and this, though his second contract of mar-
riage. made in violation of law, is necessarily a nullity. But though he thuH unquestion
ably, acerirding to his own defense, if It were proven, has lieen guilty of bigamy. It is not
th« bigamy for which he was Indicted.* For the bigamy committed by marrying Francis I.
Smith in Wisconsin he could be indicted there, but could not be indicted iu this State, as
we never cohabited wiili her in ibis State. The defense therefore attempted by the pris-
oner in this case was a legitimate defense, and his evidence offered to sustain it should
have been received by the court If in Its character it was admissible evidence, and if it
tended to establish this defense.

"The first proposition to be proven iii order lo malce out the proposed defense was,
that prior to the prisoner's marrying Francis 1. Smith in Wisconsin, on November29, 1874,
he had lawfully married some other woman. And the second proposition to be proven
was that this first wife was living on November 29, 1871."

• Our next inquiry is: Did the Circuit Court err In refusing to permit to go to the Jury
ihe copy of the divorce of the prisoner and Sarah Snodgrass. rendered by the Court of
Common Pleas of Union county, Ohio, at the May term 1875?' If the evidence of the mar
riage had been permitted to go to the Jury, as it should have been, this decree would have
shown that on November 89. 1874. when the prisoner married Fannie 1. Smith, he was the
husband of Sarah Snodgrass. For he married her on May 30, 1873, and wa* divorced from
ber May, 1875. And if this fact had been established, the prisoner woul .ave been en-
titled to an acquittal on this indictment, as his marriage to Fannie I . Sm>th would have
been utterly void.

**Tbe decree of the Court of Common Pleas of Union county, Ohio, was offered simply
to prove the existence of such a decree ; and it has been seen it was what It purported to
be, a decree of a court having Jurisdiction of the parties and the cause, and it ought there-
fore to have been received. Its only effect, so far as this case Is concerned, was to prove
that the relation of husband and wife existed between the parties to that suit up to the
rendition of this decree, and therefore to a period of time subsequent to the Wisconsin
marriage. It was thereforo entirely immaterial, whether the proceedings In that cause
were regular or irregiUar. and whether this decree ought to have been set aside by the
Ohio courts or disregarded as a good divorce dy the courts of other States. If it had been
afterward actually set aside. It would have availed the defendant in the case before is as
effectually as If it were held good and remained in full force. It was not used to show the
divorce, but simply to show that up to that time the parties to that cause were husband
and wife. And this furnishes an additional reason tor no; requiring any thing more than
the decree to be produced It establishes the fact that the parties to the cause were up to
the date of that decree husband and wife» as effeoUiaU/ias the whole copy of this record
•ould nave done '



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24 ARKANSAS,



Thomas v. City of Hot Springs.



In Miles v. United Stales, United States Sapreme Court, March SI. ]881«the samedoctitea
was held as to proof of the flrst marriage by circumstanoes and admissions. The court said:

"' It is next aasigned for error, that Uie court admitted the declarations and admissions
of the plaintiff in error to prove the fact of his flrst marriage, and the charge of the couit
ttiat the declarations of the accused were evidence proper to be considered by the -fuiyas
tending to prove an actual marriage, and that such marriage might be proven like any
other fact, by the admissions of the defendant, or by circumstantial evidence, and that It
was not necessary to prove it by witnesses who were present at the ceremony .

" To hold tliat on an indictment for bigamy, the flrst marriage can only be proven 1^
eye-witnesses of the ceremony, is to apply to this offense a rule of evidence not applicable
lu any other. Tlie great weight of authority is adverse to the position of the plaintiff
in error.

"In Regina v. Simmonsto^ 1 Car. & Kir. 164, It was held that *on an indictment for
bigamy,, the first marriage may be proved by the admissions of the prisoner ; and it is for
tlie jury to determine whether what he said was an admission that he had been legally
married according to the laws of the country where the marriage was solemnized.*

-' The same view is sustained by the following cases : Regina v. Upton, 1 Oar. & Kir
165, note (1 Greav. ed. of Russ on C. & Bi. 218); Dudiess of Kingston's case, SO How. St
Tr. 355; Truman''8 case, 1 East P. C. 470; Cay/ord'n case, 7 Grant, 57; Hani's case, 8 Fair.
nn. Stale V. Hilton, dRich. 434; State v, Britton, 4 McCord, 256; Warner ▼. Common-
wealth, 2Va. Cas. 595; Norwood' setae, 1 East P. C. 470; CommonweaXthv. Muriagh^ 1
A»lmi 272; Regina v. Netototi, 2 Moody & K. 503; StaU v. Libby, 44 Me. 460; StaU ▼. Jlo>
Itftnald, 25 Mo. 176; Cameron v. State, 14 Ala. 546 ; Wolverton v. StcUe, 16 Ohio, 173; State
V. Seals, 16 Ind. 352; Quin v. StaU, 46 Id. 725; Arnold v. StaU, 63 Ga. 674; Brown v. Staie,
52 Ala. 338: Commonwealth v. Jacksoti, 11 Bush, 679; s. c, 21 Am. Bep 225; fPtiUoMSV
State, 54 Ala. 131 ; s. c, 25 Am. Rep. 665."



Thomas v. City op Hot Springs.

(84 Ark. 568.)

Municipal corporation — ordinance againai drumming for phftidtms,

A city ordinance prohibited " drumming '* or soliciting patronage for hotel**
boarding-houses, bath-houses, physicians, quaclLS, and vendors of noetrumi
Held, void as to competent physicians; and so, U teems, as to hotels, boarding'
houses, and bath-houses. (See neie^ p* 80 )

CIONVICTION of illegal drnmming. The opmkm states tiie
; case.

Benjamin, for appellant.

Hemlerson, attorney-general, contra^

English, C. J. On the 2ad of May, 1879, Harry Thomas was
arrested under a warrant issued by the police judge of the city of
Hot Springs, on the charge of having committed the offense ol
drumming John West to Dr. C. J. Weatherbj, etc.



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NOVEMBER TERM, 1879. 25

Thomas v. Citj of Hot Springs.

The defendant was tried before the police judge, conyicted, and
appealed to the Oircnit Court of Garland county, where the case
was submitted to the court, by consent of the parties, on the plea
of not guilty. The court found defendant guilty upon the evi*
dence, and fined him $10. He moved for a new trial, which the
court refused, and he took a bill of exceptions, and appealed to this
court.

On the trial, the following ordinance was read in evidence:

'' ORDIKANGE ON DRUMMING.

" City of Hot Springs, May 5, 1879.

^* Be ii ordained by the Mayor and Board of Aldermen of the City

of Hot /Springs, that :

*' Whereas, The laws of the State for the incorporation, organi-
zation and government of municipal corporations, approved March
9, 1875, give power to the city council to license, regulate and sup-
press ordinaries, com doctors, private and venereal hospitals, and
to make and publish by-laws and ordinances which to them shall
seem necessary to secure such corporations and their inhabitants
against thieves and other persons violating the public peace, and to
promote the prosperity, and improve the morals, order, comfort and
convenienoe of such corporations and their inhabitants against
thieves and other persons violating the public peace, and to pro*
mote the prosperity, and improve the morals, order, comfort and
convenience of such corporations and their inhabitants; and,

" Whereas, It is well known that persons who run, drum and
solicit patronage for physicians and quacks, boarding-houses, bath-
houses, and gambling dens, cause great inconvenience to this resort,
provoke disorder, and greatly injure the morals, comfort and busi«
ness thereof :

" Section 1. Therefore, be it ordained by the mayor and board
of aldermen of the city of Hot Springs, that any person who shall be
found drumming, running, or soliciting strangers or visitors to this
place for any hotel, boarding-house, bath-house, physician or pre-
tended physician, quack, or vendor of nostrums — and any person who
shall employ another for such purpose, or shall in any way encour-
age or countenance such drumming, running or soliciting for any
hotel or boarding-house he or she may control, or for any business,
profession or vocation he or she may be engaged in, or for any pur-
pose whatever in the limits of this city, shall be deemed guilty of
Vol. XXXVI— 4



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26 ARKANSAS,



Thomas v. OitjT ol Hot Springs.



a misdemeanor, and on conviction shall be fined in . any snm not
less than ten dollars nor more than twenty-tive dollars. .

" Sep. 2. If any physician, or pretended physician, qnaok or
vendor of nostrums, hotel jor boarding-house keeper, or any other
person^ shall receive patients, boarders or customers at the hands,
and upon the recommendation or reference of such persons as are
recognized as drummers, he or she shall be deemed guilty of a vio-
lation of section one of this ordinance, and punished as therein
provided.

"Sec. 3. Any person engaged in drumming, running or solicit-
ing strangers or visitors for any hotel, boarding-house, bath-house,
physician or pretended physician of this city, by going back and
forth from this city on. the railroad train, shall be deemed guilty of
a violation of section one of this ordinance, and upon conviction
shall be punished as herein provided.

•* Sec. 4. Every person engaged in drumming, running, or solic-
iting stmngers or visitors for any hotel, boarding-house, bath-
house, physician or pretended physician, shall be deemed guilty of
a misdemeanor, and upon conviction shall be fined in any sum not
less than ten dollars; and every day such person continues so en-
gaged drumming, running or soliciting, ho shall be deemed guilty
of a violation of this section, and for each repetition of the offense
made punishable under this section, he shall be fined double the
sum of the fine imposed at the former trial, until the same amounts
to fifty dollars.

*• Sec. 5. Any person furnishing information leading to arrest
and conviction of any person for a violation of this ordinance, and
any police officer arresting such person at his own instance, shall
receive one-half of the fine that may be collected out of the defend-
ant upon conviction for violation of this ordinance."

Section G repeals conflicting ordinances, etc., and puts this ordi-
nance in force from its passage.

The parties consented to try the case on an agreed statement of
facts, as follows:

*' That on the twenty-second day of May, 1879, in the city of
Hot Springs, etc., defendant, Harry Thomas, by words of request
and persuasion, solicited or drummed John West, a visitor to said
city, etc., to employ Dr. C. J. Weatherby, a graduate of medicine,
and practicing physician in said city, etc., and by such request and



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NOVEMBBJl TBRM, 1879. 27



Thomas y.City of |Iot Spriiig$.



]>er8ua8ioQ^ induoed him to ^mplpj Sfiid Weatherbyas hispliysioian,
and that defendant received therefor pay from said Weatherby;
and that ho was then^ and had been for some time, engaged in so
soliciting for a firm of physicians, j^nd that for procuring patients
he is paid at the rate of five doHarsper patient, and was so paid by
said Weatherby, and that he h^ not and does not drum or solicit
for any physician or physicians save such as are graduates and
skillfnl in their profession."

The above being all the evidence, appellant moved the court to
declare, ^8 a proposition of law applicable in t^is case:

' ^ That the solicitation of business and patronage is matter of
common right, and that no municipal corporation can prohibit the
same; and tl\at the ordinance introduced in evidence in this case,
and upon which this case is baaed, is unreasonable and void."

But the court refused so to declare the law^ and found appellant
guilty, etc.

The twelfth section of the act of March 9, 1875, for the organi-
zation and government of municipal corporations (acts of 1875, p.
8), empowers such corporations to license, regulate, tax or suppress
a large number, of occupations, exhibitions, amusements, etc.,
which are named, but drumming is not among them. Nor is there
any provision of this act, or any other act, which authorizes such
corporations to license or prohibit drumming.

A drummer is one who solicits custom. — Webster.

Drummers are, and have been for ages, a large and active class
of commercial and business agents. They, it must be presumed,
were as familiar to the law makers as brokers, hawkers, peddlers,
pawn-brokers, and others mentioned in the above act; and yet they
are not named, nor has our legislature, by any act, thought proper
— if it might do so in the exercise of the police power — to require
drummers to obtain license from any source, or undertaken to
make it a criminal offense to drum for any lawful business.

It was conceded by the attorney general, who argued this case
for appellee, that drummers are not embraced in the twelfth sec-
tion of the act, but he submitted that appellee had power, under
the latter part of the twenty-second section of the act known as
the general welfare clause, to make it a criminal offense for any
person to drum for lawful occupations.

In TWiJr V. To7an of Waldron, 31 Ark. 462, the corporation at-
tempted, under an ordinance passed by its counsel, to punish Tuck



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28 ARKANSAS,



Thomas t. City of Hot Springs.



criminally for selling a half-gallon of whisky without obtaining li-
cense.

By the twelfth and seventeenth sections of the above act, muni-
cipal corporations are expressly empowered to license, regulate, tax
or suppress tippling-houses and dram-shops, and also to regulate
and prohibit ale and porter shops and houses, and public places of
habitual resort for tippling and intemperance, etc.; but they are
not expressly empowered to require persons selling ardent spirits,
as Tuck did^ to obtain license, and it was claimed that the corpora-
tion of Waldron had power, under the general welfare clause, to
require persons selling in any quantities to procure license. This
court said:

*' The rule seems to be, as stated by Judge Dillok, that when
there are both special and general provisions, the power to pass by-
laws under the special express grant can only be exercised in the



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