State v. Cone

Marriage: Person under age of consent: Bigamy. The marriage of a person who, for want of age, is incapable of assenting thereto is not void in this state, but under sec. 2350, R. S., is voidable only by judicial decree.

REPORTED from the Circuit Court for Raoine County. Prosecution for bigamy. The defendant, without the consent of his parents, married one Edith S., October 31, 1885, being then fifteen years and two months old. They cohabited together until April, 1886, when they voluntarily separated and have not since lived together. On the 19th day of September, 1891, the defendant married one Sarah C., the said Edith being still alive, and no decree of divorce or annulment of the first marriage having been obtained. Upon these facts the defendant was found guilty of bigamy, and upon motion in arrest of judgment the circuit judge certified the above facts to this court, and submits the question, “Can the defendant be legally convicted of bigamy under the above facts?” They contended, inter alia, that at common law marriages between parties when either is under the age of consent may be disaffirmed by the party under such age without a judicial sentence. 1 Bishop, Mar. & Div. secs. 149, 150, 153; Schouler, Uom. Rel. 32; People v. Slack, 15 Mich. 193; People v. Bennett, 39 id. 208; Shafher v. State, 20 Ohio,'l; McDowell v. Sapp, 39 Ohio St. 558; Holtz v. Dick, 42 id. 23; McDeed v. Mc-Deed, 67 Ill. 546. The rule of the common law has not been changed by statute in this state. It could not be repealed by implication, but the intent to repeal it must be clearly expressed. The common law furnishes no niethod of obtaining a judicial sentence for annulling such a marriage {Shafher v. State, 20 Ohio, 7), and secs. 2350-2354, R. S., were passed to provide for such a decree, but not for the purpose of abrogating the common-law rule. People v. Slade, 15 Mich. 193. A judicial sentence of nullity is not necessary in case of a void marriage to authorize a person capable of marrying to enter into a second valid marriage. Patterson v. Gaines, 6 How. 550; Gaines v. Pelf, 12 id. 472.