Geisselman v. Geisselman

⁴⁵⁴ Boyd, C. J., delivered the opinion, of the Court. This is an appeal from a decree dismissing a hill of complaint filed by the appellant against the appellee for a divorce a vinculo matrimonii, on the ground of her alleged adultery. They were married on the 22nd of June, 1913, in New Jersey. The testimony of the plaintiff and of another witness, as well as a letter of the defendant, shows that she was. guilty of adultery.

The bill alleges that from December, 1913, until July, 1915, the defendant left the plaintiff on several occasions and lived with other men, as man and wife; that he forgave her and took her back, but there is no evidence of con-donation of the offense committed in July, 1915, and subsequent thereto. She and another girl and a man were convicted in Camden, New Jersey, of what the plaintiff spoke of in his testimony as high-way robbery, although the record of the conviction was. not offered. The plaintiff testified that it was in August, 1915, and that he saw her in jail in December, 1915, but had not seen her since. She was sentenced to confinement in a reformatory institution.

She was paroled in January, 1917, and there is evidence tending to show that after she was- released, she was seen going upstairs in a boarding house with some man. On May 6, 1916, the appellant married another woman in Baltimore Comity, Md., where he went the latter part of August, 1915, and by that woman he had one child, but no child by his first wife. As early as February 2nd, 1916, as shown by the letter of the appellee, which the appellant offered in evidence, he was paying attention to the woman he afterwards married. He said that he had been going with her about two weeks “towards the latter part of December,” but that he had had no immoral relations with her; that they worked in the same place.

Their child was born in January, 1917. The plaintiff alleged in his bill and testified that he believed that after his wife was sentenced and imprisoned, he could marry again without obtaining a divorce, and, being under that impression, married in Baltimore County. ⁴⁵⁵ The appellant was, indicted, for bigamy in December, 1916, and entered into a recognizance. Nothing seems- to- have been done with the ease until February, 1918, when he plead guilty but was paroled. That was after the testimony was taken in this case, but before the decree was passed.

In the appellant’s brief it is stated that when he was- arrested and the situation became known to him, he ceased to- live with tho woman spoken of as his second wife, but there is nothing in the bill or in the evidence to that effect. The hill for divorce was filed in October, 1917, and it is stated in it that it is his desire to be divorced, “so that he may again marry the woman whom he married in good faith, and thus make‘her h-is legal wife and make her child legitimate-.” Our statute is silent as to the defense of recrimination, but it was a bar in the Ecclesiastical courts and has been recognized in many cases in this State, amongst others,: Fisher v. Fisher, 93 Md. 298 , and Green v. Green, 125 Md. 141 . The question now involved has, not been heretofore decided by us, but there have been many decisions, elsewhere on this, and kindred subjects. Cases in which the defendants were charged with "bigamy are more analogous to those where parties are charged with adultery, by reason of invalid marriages,, than any others, and we will first refer to some of them..

The question has generally arisen in them either when, in, tho statute against bigamy, it was provided that it should not, apply where the other spouse had been absent for- a period of years named in the statute—generally seven—and the accused did not know that the other spouse was still living, or where there had been a divorce proceeding which was found to be invalid. The English statute had a, proviso that “nothing in this act shall extend to any person marrying a second time whose- husband or wife shall have been continually absent from such person for the space of seven years last passed, and shall not have been known bv such person to- he living within that time.” Most of those in this country are in substance similar to that. The leading English case on the subject seems to be Reg. v. Tolson, 23 Q. B. Div. 168, although it was decided ⁴⁵⁶ by a divided Court of nine to five. It, however, settled the rule there, affirming some earlier cases and overruling some others.

It was there held: “That a bona- fide belief, on reasonable grounds, in the death of the spouse at the time of the second marriage, is a good defense to a prosecution for bigamy.” The English rule has not been followed in many jurisdictions in this country. Without deeming it necessary to discuss the numerous cases, we will refer to- State v. Ackerly, 79 Vt. 69 , 64 At. 450 , reported in 8 Ann. Cas. 1103, and annotated on pages 1104, etc.; Cornett v. Commonwealth, 134 Ky. 613 , 121 S. W. 424 , and reported in 21 Ann. Cas. 399; Rex v. Brinkley, 14 Ont. L. Rep. 434, reported in 10 Ann. Cas. 407, and annotated on pages 415, etc., and People v. Spoor, 235 Ill. 230 , reported in 14 Ann. Cas. 638. In State v. Ackerly , quoting for convenience from the syllabus in the Annotated Oases, it was held that: “It is bigamy for a married person whose spouse is absent from the State or from the country, but is alive, to marry a third person before the expiration of the time prescribed by the statute, even though the spouse contracting such second marriage does so under the honest belief, based upon reasonable grounds, that the absent spouse is dead.” Many cases are cited in the note to show that such is the doctrine in this country.

In Cornett v. Com., it was held as stated in note in Annotated Oases, “that an honest belief that the first spouse is dead is no> defense to a prosecution for, bigamy although the evidence clearly shows that the defendant had no knowledge or intention of committing any wrong by his second marriage.” The Kentucky Court of Appeals also held in that case that evidence of good faith w&s admissible provided the jury was admonished not to consider it as a defense to the prosecution, but only in mitigation of the punishment, if they found him guilty. In People v. Spoor, supra, Justice Carter, in speaking for the Court, said: “We think that the decided weight of authority in this country holds> that proof of the fact that the second-marriage was entered into in good faith, under an honest but mistaken belief that the first wife was ⁴⁵⁷ dead or had obtained a divorce, constitutes no defense to the charge of bigamy.” The Court said, in answer to the contention that the evidence offered tended to show lack of criminal intent, that “the intent may be inferred from the criminality of the Act itself.” There was a good deal in that case to show good faith. In Rex v. Brinkley, supra, a divorce was obtained in Michigan, which was invalid in Canada and thereafter, the husband, acting under legal advice that the divorce was Valid and that he was at liberty to marry again, went through a form of marriage with another woman in Michigan, where they had gone from Canada for the purpose of contracting marriage, and he w'as held guilty of bigamy under the Canadian law. In the note to that case, it is said that: “The rule laid down in the reported case, that an honest belief in the validity of an invalid divorce, is no defense to a prosecution for bigamy, is the law in most jurisdictions.,” and “a fortiori, it is no defense that the defendant erroneously believed prior to the second marriage that a divorce had been granted.” Cases from different, jurisdictions are cited in the notes to those cases.

In 7 C. ,7. 1163, after stating the English rule, which it is said obtains in Canada, the Philippines and in a few jurist dictions in the United States, and adding “but such belief must be the residt of proper inquiries and efforts to ascertain the truth,” the author states that the prevailing doctrine in this country is directly opposed to the English rule and quotes from Parnell v. State, 126 Ga. 103 ; 54 S. E. 804 , that: “The absent spouse must be in point of fact dead, if (defendant) marries before the prescribed period has. expired, to protect him from the pains and punishments of a second marriage.” On page 1165, section 22 of 7 C. J., it is said that: “In a number of jurisdictions it is held that an honest belief, reasonably entertained, that a valid divorce has been granted, will constitute a defense to a prosecution for bigamy. The weight of authority, however, is to the contrary.” In section 23 on that page it is said: “Advice of counsel that there is no impediment, to a second marriage is no defense to a. prose ⁴⁵⁸ cution for bigamy. This principle has been applied when defendant was advised by counsel that a decree of divorce had dissolved the prior marriage, or that the prior marriage was void.” Many authorities are cited in the notes on those pages-. In 3 Rul.

C. L. 801-803, Par. 9-12, the question of intent is considered. It is said in paragraph 9 that in the United States, “the crime of bigamy is considered to be on a par with various police regulations where criminal intent is unnecessary. Another strong -argument for the American view is that of public policy, as it may fairly be said that various unfortunate complications might well arise from the protection of two separate marriages by the same person.” Then, -after referring to statutes about the absence of the spouse, it is said: “These statutes are usually construed tornean that one who marries Within the statutory period has no defense if the first wife is still alive, although the second marriage is entered into in an honest belief in the- death of the first wife. It is usually the intent of the statute that one who marries within the statutory period shall do so at his peril.

The consequences of an invalid marriage- to society and to innocent parties are so serious that the law may well take measures calculated to insure the procurement of the most positive evidence of death before the contracting of another mlarriage in less than the time fixed.” There would seem to be- no doubt that under the above authorities, and others might he cited, the appellant could not have escaped conviction for bigamy and he, as we have seen, did actually plead guilty of that crime. If the Court was satisfied that he was acting in good faith, as it apparently was, paroling him was a very wise and just disposition of the case. When we come to the question whether he was guilty of adultery, what must he our conclusion ? After giving consideration to the case of State v. Ackerly , which was reported in 79 Vt., we confess we Were at first surprised to find the