CLARK, C. J., dissenting arguendo. We do not refer to many of the interesting questions presented in defendant's case on appeal, for the reason that the Court is of opinion that in no aspect of the State's testimony can the defendant be convicted of the offense charged in the bill of indictment. The State does not contend or claim that such conviction can be upheld, except under our statute against bigamy (Rev. 1905, sec. 3361). On matters relevant to this inquiry, this section of our law provides as follows:
"3361. Bigamy. — If any person, being married, shall marry any other person, during the life of the former husband or wife, whether the second marriage shall have taken place in the State of North Carolina or elsewhere, every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony and imprisoned in the State's Prison or county jail for any term not less than four months nor more than ten years; and any such offense may be dealt with, tried, determined and punished in the county where the offender shall be apprehended or be in custody, as if the offense had been actually committed in that county."
This has long been the law of this State controlling the matter, and appears in terms exactly similar in the Code of 1883, as section 988. Construing this section, in S. v. Cutshall, 110 N.C. 538, Justice Avery, for the Court, in a forcible and learned opinion, decides that this statute, in *Page 684 so far as it undertakes to punish a defendant for a bigamous marriage, occuring [occurring] beyond the borders of the State, is unconstitutional, and that, in the language of the statute defining the offense, "If any person, being married, shall marry another person, during the life of the former husband or wife, whether the second marriage shall have taken place in the State of North Carolina or elsewhere, etc., shall be guilty of a felony," the expression "or elsewhere" is void and of no effect. An examination of Cutshall's case will further disclose that it was there directly and necessarily held that the parties to a bigamous marriage, occurring without the State, could not be indicted and punished under the provisions of this statute, by reason of having thereafter returned to the State and lived together as husband and wife.
The case in question was determined on appeal by the State from an order quashing a bill of indictment for bigamy. The bill contained three counts: The first charged, in substance, a bigamous (713) marriage, occurring in the State of South Carolina. A second charged that, after such bigamous marriage in South Carolina, the parties came back to North Carolina and lived together as husband and wife. There was a third count in the bill, on which a nolle prosequi was entered in the lower court, and the contents are therefore immaterial.
The Supreme Court, as stated, held that no offense was charged in the first count, because our State law could not be given extra-territorial effect; and that none was charged in the second count, because the statute contained no such provision. Justice Avery, speaking to this last question, said: "The additional count, in which it was charged that the defendant, after the bigamous marriage in South Carolina, came into North Carolina and cohabited with the person to whom he was married, cannot be sustained, because the offense is not covered by the statute." And a perusal of the law gives clear indication that the Court has correctly construed it inCutshall's case. The only offense created and defined by this section of the statute is the "second marriage, while a former husband or wife is still living." This is declared to be felony, and it is the only act made criminal by the law, for it is perfectly plain that the subsequent words of the statute, "and any such offense shall be dealt with, tried, determined and punished in the county where the offender shall be apprehended or be in custody," refers only to the venue of the crime defined in the first clause, "such offense" being, as stated, "the second marriage, the former husband and wife still living." Coming back into the State after a bigamous marriage elsewhere, and a living together by the parties as husband and wife, might and ordinarily would constitute the crime of fornication and adultery. S. v. Cutshall, 109 N.C. 764. But there is nothing in this statute *Page 685 which makes such conduct a felony, or which deals or attempts to deal with it one way or another; and the expression, "or elsewhere" — that is, a bigamous marriage beyond the borders of the State — having been declared of no effect by the courts, because contrary to the law of the land, there is nothing in the statute which applies to the conduct of the defendant, and he is entitled to go, quit of any further molestation by reason of any indictment predicated and necessarily dependent upon it.
There are decisions in many of the States, and by courts of recognized authority, sustaining convictions by reason of conduct similar to that imputable to defendant on this evidence, or upholding statutes condemning it. Brewer v. State, 59 Ala. 101; Commonwealth v. Thompson, 56 Mass. 551;S. v. Fitzgerald, 75 Mo., 571; S. v. Palmer, 18 Vt. 570. But in the cases cited, and all others of like import, so far as we have examined, the statutes, in express terms, made the "cohabiting (714) together within the State, after a bigamous marriage elsewhere," a specific criminal offense. Thus, in the Missouri statute (S. v.Fitzgerald, supra), the language is, "Every person having a husband or wife living, who shall marry another person without this State, in any case where such marriage would be punishable if contracted or solemnized in this State, and shall thereafter cohabit with such other person within this State, shall be adjudged guilty of bigamy," etc.
As now advised, and speaking for himself, the writer sees no reason why a State could not declare the coming into the State and cohabiting together here by the parties, after a bigamous marriage in another State, a felony, and punish it as such; but the question is not presented, for the Court is clearly of opinion that our statute contains no such provision, and the prosecution of the defendant, therefore, for the offense charged, on the evidence as it now appears, cannot be sustained.
The Court is not inadvertent to S. v. Long, 143 N.C. 670, which upholds the contrary view, but, after a careful consideration, we are of opinion that, on authority and for the reasons stated, the case referred to is not well decided; and, on the facts presented, the defendant was entitled to the instruction prayed for by him, that if the jury believed the evidence they would render a verdict of not guilty.
For the error indicated, there will be a
New trial.