Kauffman v. Kauffman

Opinion by

Beaver, J.,

The libellant sought a divorce from her husband under the provisions of the Act of May 8, 1854, P. L. 644, as amended by the Act of June 1, 1891, P. L. 142.

The former act provides: “ That, in addition to the cases now provided for by law, it shall be lawful for the courts of common pleas of this commonwealth to grant divorces in the following cases : .... “II. Where either of the parties shall have been convicted of a felony and sentenced by the proper court either to the county prison of the proper county or to the penitentiary of the proper district for any term, exceeding two years : Provided that such application for a divorce be made by the husband or wife of the party so convicted and sentenced.”

This was amended by the latter act to read as follows : “ II. When either of the parties heretofore has been or hereafter shall be convicted of forgery or any infamous crime, either within or without this state, and sentenced to imprisonment for any term exceeding two years : Provided that such application for a divorce be made by the husband or wife of the party so convicted and sentenced: And provided further, in cases where the conviction was had outside this state, that the Crime for which it was had be one -which by the laws of this state may be punished by imprisonment for two years or more.”

The marriage of the libellant and respondent is not denied, nor are the main facts upon which the- libellant bases her application. There was neither an appearance nor paper-book for the appellee but it sufficiently appears that “ in July, 1899, the respondent was arrested for larceny and, after a hearing in Philadelphia, was taken to Norristown, where he was indicted for larceny and receiving stolen goods, two true bills being found by'the grand jury.” October 4, 1899, he pleaded'guilty and, on the seventh of the same month, was sentenced to one year and six months on each of the two indictments found against him.

Notwithstanding the report of the master and the able and earnest argument of the counsel for the appellant, we are clearly of the opinion that the act refers to a conviction of a single felony followed by a sentence for a term exceeding two years and not to a conviction of several distinct offenses, the sentences for which combined exceed the statutory period. This Seems to us apparent from the reading of the act itself and especially from the proviso which enacts that “ in cases where the conviction was had outside this state, -that the crime for which it was had be one which, by the laws of this state, may be punished by imprisonment for two years or more.” If the contention of the appellant be true, it would be equally true that, if the respondent had been convicted in different counties of several distinct felonies, the combined sentences for which would aggregate more than two years, she would have been entitled to a divorce. Surely this was not the intention of the legislature.

The opinion-filed by President Judge Sulzberger in the court below fully covers the case and needs neither comment nor elaboration on our part.

The decree is affirmed and the appeal dismissed at the costs of the appellant.