Langtry v. State , 30 Ala. 536 ( 1857 )

STONE, J.

The record in this case presents the single question, whether, in a prosecution for bigamy, the first marriage may be proved by cohabitation, and the confessions of the party. In the ease of Ford v. Ford, 4 Ala. 142, this court said, “Upon an indictment for bigamy, and in the action for criminal conversation, the fact of the former marriage must be proved by the production of the record of the marriage, or by a witness present at the ceremony.”

In Morris v. Miller, 4 Burr. 2057, Lord Mansfield, in delivering the opinion of the court in a case of crim. con., said, “It shall not depend upon the mere reputation of a marriage, which arises from the conduct or declarations of the plaintiff himself.” He adds, “In prosecutions for bigamy, a marriage in fact must be proved.”

To the same effect are Fenton v. Reed, 4 Johns. 52-3; Commonwealth v. Littlejohn, 15 Mass. 163; People v. Humphrey, 7 Johns. 314; Bishop on Marriage and Divorce, § 324.

On the other hand, the following authorities are directly in point, to show that marriage, even in prosecutions for bigamy, may be proved by cohabitation and the confessions of the party; but that the testimony, to justify a conviction, must be clear, strong and convincing. — See able opinion by C. J. Gibson, in Forney v. Hallachee, 8 Serg. & R. 159; Com. v. Murtagh, 1 Ashm. 272; Ham’s case, 11 Maine, 391; Cayford’s case, 7 Greenl. 57; The State v. Hilton, 3 Rich. (Law) R. 434; Roscoe’s Cr. Ev. (3d Amer. ed.) 311, 312.

The language quoted from Ford v. Ford, supra, is dictum ; no point of the kind arising in the case. So much of tbe opinion of Lord Mansfiel,d ’in Morris v. Miller, supra; as> -relates >to' :crim.e of bigamy,- -’ is also dictum. So, alsoptlie; case of Fenton v. Reed, supra.

While iwe’admit the soundness oftberule wbicb requires full-ahdisatisfactory proof of-marriage, before a- conviction cap'be-had of so grave anfofibrise as 'bigamy, we are not prepared-’t't)'’re-’affirin.i 'tbe dictum' in- tbe case of Ford v. Ford, supra.'d On tbe contrary, we hold, that if tle^roof ' of mamáge;-be"full'.ánd satisfactory, it is not absolutely necessary that tbe prosecution-shall produce either the"record>of tbe marriageyor the> ’testimony of some person-' who-witnessed the ceremony. — See' Morgan v. The State, 11 Ala. 289.

Tbe i charge; askqd in; this ¡ case,'; and-refused;' was1 -in; co.n- < ■ "’ fliot.with:these .viéte;- and-the! city ’court" did not erran - refusing to give it. mv >'•' ? b -11---

Judgment'of f be'city court-affirmed;