The People v. Faber

Rapallo, J.

The question in this case is whether contracting a marriage in this State, in violation of section 49 of the act concerning divorces (2 R. S.

146), constitutes the crime of bigamy, as defined in 2 R. S.

687, sections 8, 9 ; or is punishable only as a misdemeanor. The provisions of the Revised Statutes bearing upon the question are as follows :

Article 1 of title 1, chapter 8, "part 2, relating to marriage, provides (section 5): “Ho second or other subsequent marriage shall be contracted by any person during the lifetime of any ^former husband.or wife of such person, unless—1. The marriage with such- former husband or wife shall have been annulled or dissolved for some cause other than the adultery of the accused” (2 R. S.

139).

■ Article 3 of the same title, concerning divorces (2 R. S.

144), provides (section 38): “ Divorces may be decreed, and marriages may be dissolved by the court of chancery, whenever adultery has been committed by any husband or wife. ” Section 49: . “ Whenever a marriage shall be dissolved, pursuant to the provisions of this article, the complainant may marry again during the lifetime of the defendant, but no defendant convicted of *119 adultery shall marry again' until the death of the complainant.”

Article 2 of title 5 of chapter 1 of part 4 of the Revised Statutes, entitled “ Of unlawful marriages and of incest ” (2 R. S.

687), provides (§ 8): “ Every person having a husband or wife living, who shall marry any other person, whether married or single, shall, except in the cases specified in the next section, be adjudged guilty of bigamy; and upon conviction shall be punished by imprisonment in the' state prison for a term not exceeding five years. ” Section 9 : “ The last section shall not extend to the following persons or cases.”

Then follow six subdivisions, the third of which is :

“ 3.

To any person by reason of any former marriage which shall have been dissolved by the decree of a competent court, for some cause other than the adultery of such person.”

Reading all these provisions together, the conclusion seems irresistible that the intent of the statute was that section 8 should extend to a divorced person who did not come within the exception.' The language clearly implies that notwithstanding the divorce such a person is placed in the situation of haying a husband or wife living, for the purposes of the eighth section.

The third subdivision imports into the statute, for the punishment of bigamy, almost the identical language which is employed in 2 R. S.

139, § 5, subd. 1, which prohibits and declares unlawful certain marriages, the only difference being that in 2 R. 8.

139, a husband or wife by the first marriage who has obtained a divorce is spoken of as the former husband or wife, and in subdivision 3 of section 8 the prior marriage is spoken of as the former marriage; but the intent is clear that the prohibition contained in the statutes concerning marriages and divorces shall be incorporated into the statutes punishing bigamy. The language of the latter act, where the sections are connected is, that every person having a husband or wife living, who shall marry, &c., shall be guilty of bigamy, except where the former marriage has been dissolved for some cause other than the adultery of the person contracting the subsequent marriage. There could scarcely be a plainer implication than that, for the purpose of enforcing the statutory prohibition, a person against whom a divorce has been obtained for that cause is regarded *120 by the statute as having a husband or wife living, so long as the party obtaining the divorce lives.

The judgment of the General Term in this case was based upon the case of People v. Hovey ( 5 Barb.

117 ), which was decided in 1849 by the General Term of the Supreme Court in the Seventh District. In that case it was held that a violation of the prohibition against marriage of the guilty party contained in the divorce act, did not constitute bigamy, and the reasons assigned for that conclusion were that the divorce dissolved the former marriage and, after such dissolution-, neither party could have a husband or wife living; that, consequently, such a case was not included in section 8, and the provisions of that section could not be enlarged by the exception contained in the third subdivision of section 9.

This criticism of the language of the section cannot, in our judgment, overcome the clear and unmistakable intent apparent on the face of the provisions when read together. The declaration that the eighth section shall not extend to a person by reason of a former marriage which has been dissolved by the decree of a competent court for some cause other than the adultery of such person, clearly assumes that it does extend to a person whose former marriage has been dissolved for his or her adultery. If not, the third subdivision of section 9 is wholly without meaning or operation.

The same argument which was used in People v. Hovey was subsequently sought to be employed in the case of Wait v. Wait ( 4 N. Y.

95 ). In that case the plaintiff claimed dower in lands left by a husband from whom she had obtained a divorce a vinculo on the ground of his adultery. There is no express provision of the statute declaring a widow entitled to dower under such circumstances, but the right of dower is not taken away ; and its continuance is impliedly recognized in section 48 of the divorce act (2 R. S.

146), which declares that a wife convicted of adultery in a suit for a divorce brought by her husband shall not be entitled to dower in her husband’s real estate. In the case cited it was argued by Mr. Hill that the right to dower could only be acquired by the death of the husband; that only a widow had a dowerable capacity,, and that she must have such capacity at the time of his death ; that she could be endowed of *121 lands of her deceased husband only; that she must survive her husband, and that she must be a wife at the time of his decease, or she cannot be his widow ; that the marriage being dissolved, she ceased to be his wife and could not be his widow. But this construction of language was not suffered to prevail, and it was held that, although the term widow might not be the most appropriate term to employ under these circumstances, yet it was sufficient to designate the person entitled to dower, and the conclusion was that the divorced wife was entitled to the benefit of the statute which awards dower to the widow.

A reference to section 48 of the divorce act (2 R. S.

146) is also instructive as showing that for some purposes the Legislature apply the terms “ husband ” and “ wife ” to parties between whom a decree of divorce a vinculo has been pronounced. The language of section 48 is “ a wife,” being a defendant in a suit for a divorce brought by her husband, and “ convicted ” of adultery, shall not be entitled to dower in her “ husband’s ” real estate. The terms “ husband ” and “ wife ” are thus applied to the parties after the judgment of divorce has been rendered, without the addition of the term “ former,” or any' other term indicating that the parties had ceased to answer the description of husband and wife.

A reference to the history of our statute against bigamy shows very conclusively that its framers intended it to apply to a case like the present one. The first act on the subject was passed February 7, 1788, and was re-enacted in 1 R. S.

113, as follows:

“ That if any person or persons being married or who hereafter shall marry, do at any time marry any person, or persons, the former husband or wife being alive, then any such person shall be guilty of a felony .... But neither this act or anything therein contained shall extend to any person or persons ” . . . then follow five specifications, the third of which is, “ nor to any person or persons who are or shall be at the time of such marriage, divorced by the sentence or decree of any court having cognizance thereof.”

In framing the provisions of the Revised Statutes it is stated by the revisers, in their original note to section 8 (the statute against bigamy), that it was the same as 1 R. S.

113, varied by *122 inserting “ whether married or single ” to reach cases not supposed to be within the act; and the note to section 9 states that the first five subdivisions are founded upon 1 R. S., 113, the third being qualified according to 2 R. S., 198, § 4. Section 4 here referred to. is contained in the divorce law of 1813, and is the provision that it shall not be lawful for the defendant, who may be convicted of adultery, to marry again until the complainant shall be actually dead. It cannot be doubted that the intention of the revisers was to bring a violation of this prohibition within the statute against bigamy.

The new Penal Code, adopted in 1881, re-enacts the statute in the same language as in the Revised Statutes, except that it has added to the third subdivision of section nine a further exception in favor of a divorced party who has obtained permission from the court to marry again, pursuant to the act authorizing such permission to be given.

Upon the theory of the respondent, all these elaborate provisions are senseless and without any effect whatever.

The utility of the prohibition of such marriage it is not for us to discuss here. So long as it stands upon the statute book, we are bound to give it force in the manner prescribed by the Legislature, when the.violation of it is committed within this State.

The judgment appealed from should be reversed, and that of the Court of General Sessions affirmed, and the proceedings remitted.

All concur except Andrews, J., who dissents on the ground that the construction of the statute on bigamy by the General Term in People v. Hovey ( 5 Barb.

117 ) has never been reversed or questioned in any judicial decision until now; and Earle, J., who dissents generally.